The introduction of the Unified Patent Court (UPC) system in 2023 opened a new but untested pathway to protect and enforce innovation in Europe. More than 18 months into the new system, patent applicants are exploring new ways to navigate this evolving landscape. We summarise the options and explain how to select the optimal European patent protection strategy for your market needs, budget and business objectives.
When seeking to protect innovation in Europe, patent holders now have the option of choosing between the unitary patent (UP) and national (EP) validations or taking a mixed approach. As each strategy has distinct implications for cost, geographical coverage and legal enforcement, selecting the optimal patent protection strategy in Europe requires a considered and structured approach.
To help patent applicants navigate the different pathways to protection and enforcement, our latest white paper 'Maximising European patent protection' provides a framework for selecting the optimal strategy aligned with market needs, budgets and business objectives. Here, we summarise some of the key points discussed.
In a nutshell: European patent protection pathways
After a European Patent (EP) is granted by the European Patent Office (EPO), there are three main strategies for post-grant patent protection: the Unitary Patent (UP), national validations and the mixed approach.
- Unitary patent (UP): Provides uniform protection across participating EU member states via a single request and renewal, with simplified management and centralised enforcement via the UPC.
- National validations: Tailored protection in specific countries with established local systems but at higher administrative and cost burdens for an EU-wide protection.
- Mixed approach: Combines UP coverage with targeted national validations for non-UP countries, optimising costs and coverage.
Ultimately, the routes you choose to navigate the EU patent system will shape the territorial scope, enforcement ease and overall value of your patent(s), making a thoughtful, well-aligned strategy critical for your long-term business objectives.
Which European patent protection system is right for you?
The UP, national validations and mixed route each have their own advantages and limitations, including the following key considerations.
—Unitary patent (UP): Ideal for businesses targeting markets primarily within the participating EU countries and seeking simplified administration and cost-efficiency:
- The UP consolidates patent management by eliminating the need for multiple national validations. Once an EP is granted, the UP allows for a single request for unitary effect, significantly reducing administrative complexity while covering 18 states at once.
- However, some important countries, such as Spain, the UK, Turkey, Norway and Switzerland, are not covered, requiring separate national validations for protection in these countries.
- The UPC's centralised jurisdiction also introduces the risk of a single invalidation decision nullifying the patent across all UP states.
—National validations: Particularly suited to businesses that need protection in non-UP countries or prefer the security of independent legal systems for enforcement:
- National validations remain a critical pathway for patent holders who need tailored protection in specific contracting states of the European Patent Convention (EPC).
- However, national validations can be expensive and involve navigating varied legal and procedural requirements, including translations, national filing fees and appointment of local representatives.
- Each validated patent also incurs separate annual renewal fees, which can become financially burdensome over the patent's lifetime
—Mixed approach: Ideal for businesses with diverse market footprints that span both UP and non-UP countries, the mixed approach is particularly advantageous for companies seeking to balance cost-efficiency with broad territorial coverage:
- The mixed approach combines the UP system with national validations to achieve comprehensive protection across Europe. This strategy leverages the strengths of both EU patent systems while mitigating their individual limitations.
- However, implementing the mixed approach requires careful planning and coordination, increasing administrative efforts, such as managing separate renewal fees and legal obligations.
Navigating the EU patent system: How to get started
Patent holders are advised to base their decisions on thorough market analysis, cost-benefit evaluations and enforcement considerations. Engaging experienced European patent protection professionals, such as Novagraaf, can streamline the process, ensuring that the chosen strategy aligns with business objectives and maximises the value of your European patent portfolio.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
