A European patent with unitary Effect
As noted in the short introduction, the "unitary patent" is the subject of EU Regulation no. 1257/2012 of 17 December 2012 (see footnote 1). It is a European patent, granted by the European Patent Office under the rules and procedures laid down in the EPC, which benefits from "unitary effect" in the "participating Member States" by virtue of EU Regulation no. 1257/2012.
There are many references to "unitary patent" in the legislation. The more precise term is "European patent with unitary effect" – there are many European patents which do not, and will not, have unitary effect. As noted below, a European patent has to be registered for unitary patent protection.
Requirements in order to benefit
In order to benefit from the unitary effect a European patent must:
- Have been granted with the same set of claims in respect of all participating Member States; and
- Be registered in the EPO Register for unitary patent protection.
However the unitary effect of a European patent shall be deemed not to have arisen to the extent it has been revoked or limited.
Transactions involving a European patent with unitary effect
European patents with unitary effect can only be limited, transferred or revoked (or lapse) in respect of all participating Member States, but may be licensed in respect of the whole or part of the territory of the participating Member States.
The applicable law
The European patent with unitary effect as an object of property shall be treated in its entirety and in all the participating Member States as a national patent of the participating Member State in which that patent has unitary effect and in which (according to the European Patent Register);
- The applicant had his residence or principal place of business; or
- Where the point above does not apply, the applicant had a place of business on the date of filing the application for the European patent.
The acts against which the patent provide protection as set out in EU Regulation no. 1257/2012 are those defined by the applicable national law. However, whilst the national laws are broadly similar from one country to another (and as set out in the Unified Patent Court Agreement), there are variations (e.g. in relation to experimental use (as referred to in Article 27(b) of the Unified Courts Agreement)). Thus different patents may have different protection to the extent that national law varies from one country to another.
Articles 25 to 27 of the Unified Patent Court Agreement also set out the rights a patent confers on its proprietor – and these make no reference to national law.
Where the applicant has no residence or principal place of business or place of business in a participating Member State, the default position is that the law of the place where the EPO has its headquarters (Munich, Germany) will apply – i.e. German law will apply.
See supplementary documents for further information on:
- A short introduction to the Unitary Patent and the Unified Patent Court
- The role of the EPO and financial provisions
- Translation and language arrangements
- The Unified Patent Court
- Situations where the permanent long term provisions will not apply (including transitional provisions and opt-out)
- How valuable will the new regime be to your business?
- Developments since signature of the Unified Patent Court Agreement
1. Regulation EU no 1257/2012 of 17 December 2012 "implementing enhanced cooperation in the area of the creation of unitary patent protection". Click here for the link.
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.