FAQ on the Unitary Patent

General information

What is a Unitary Patent?

A Unitary Patent – or "European patent with unitary effect" – is a European patent, granted by the EPO under the rules and procedures of the European Patent Convention, to which, at the patent proprietor's request, unitary effect is given for the territory of the EU Member States participating in the Unitary Patent system that have ratified the Agreement on a Unified Patent Court. It is expected that, initially, a Unitary Patent will cover the territory of at least 17 EU Member States (see also "What is the territorial scope of a Unitary Patent?").

A Unitary Patent gives inventors uniform and territorially broad protection in the participating EU Member States. Uniform protection means that the scope of the right conferred by the Unitary Patent and its limitations are the same for all the participating states, as are the available legal remedies.

Why was the Unitary Patent introduced?

Today, an inventor can protect an invention in Europe via a national patent or a European patent. The EPO examines applications for European patents centrally, saving inventors the costs of parallel national applications, while ensuring a high quality of granted patents.

However, granted European patents must be validated and maintained individually in each country where they take effect. This can be a complex and potentially very costly process: validation requirements differ between countries and can lead to high direct and indirect costs, including translation costs, validation fees (i.e. fees due in some countries for publication of the translations) and associated representation costs, such as the attorney fees charged for the validation and administration of the patent (i.e. payment of national renewal fees). These costs can be considerable and depend on the number of countries where the patent proprietor wishes to validate the European patent.

The Unitary Patent removes the need for these complex and costly national validation procedures. The EPO acts as a one-stop-shop, allowing for a simple registration of a Unitary Patent for the territory of up to 25 countries.

For further details, please see the Unitary Patent Guide.

What tasks have been entrusted to the EPO by the 25 Member States participating in the Unitary Patent system?

Under EU Regulation No 1257/2012 on the creation of Unitary Patent protection, the participating Member States have entrusted the EPO with the following tasks:

  • receiving and examining requests for unitary effect
  • registering unitary effect
  • publishing translations during the transitional period
  • setting up and maintaining a new "Register for Unitary Patent Protection" containing entries on transfer, licensing, lapse, limitation or revocation of Unitary Patents
  • collecting annual renewal fees for Unitary Patents
  • distributing a share of the annual renewal fees to the participating Member States
  • administering the compensation scheme to support certain applicants (see also "Are there any reductions for small entities, such as SMEs, start-ups and universities?").


EPO decisions on Unitary Patents will be taken by a new Unitary Patent Division set up under Article 143(2) EPC. Decisions of the Unitary Patent Division can be appealed to the Unified Patent Court.

Start date of the new system

When will the Unitary Patent system start?

The Unitary Patent system is expected to start in the second half of 2022, once the necessary ratification procedures have been finalised by the required number of EU Member States.

The Unitary Patent system is inextricably linked to the creation of the Unified Patent Court, which will have jurisdiction over Unitary Patents and "classic" European patents: the two EU regulations setting up the Unitary Patent (Regulations (EU) No 1257/2012 and (EU) No 1260/2012) will apply as from the date of entry into force of the Agreement on a Unified Patent Court. This will be the first day of the fourth month after Germany deposits its instrument ratifying the agreement.

The secondary legislation on the Unitary Patent, in particular the Rules relating to Unitary Patent Protection, which formally entrust the EPO with the administration of the Unitary Patent, and the Rules relating to Fees for Unitary Patent Protection, will also enter into force on that date.

Territorial scope of a Unitary Patent and possible combination with other patents

What is the territorial scope of a Unitary Patent?

The geographical scope of the Unitary Patent will eventually cover all the 25 EU Member States that have joined the enhanced cooperation in the creation of Unitary Patent protection. But to be covered by the Unitary Patent, a Member State must not only be participating in this enhanced cooperation but must also have ratified the Agreement on a Unified Patent Court (UPCA) when the Unitary Patent is registered. It is expected that at least 17 states will have done so when the new system starts.

The geographical scope of a given Unitary Patent will remain the same for its lifetime and will not be extended to those states that ratify the UPCA after its unitary effect has been registered.

Can I combine the routes to patent protection in Europe?

A Unitary Patent offers an additional option for patent protection in Europe, available alongside the two existing options, namely the national route or a "classic" European patent. Those preferring to seek protection in individual EPC contracting states can still file patent applications with those states' national patent offices, and it also remains possible to validate a European patent in one or more EPC contracting states.

Moreover, a Unitary Patent can be combined with a "classic" European patent: it is possible to have a European patent registered as a Unitary Patent and additionally validate that European patent in the other EPC contracting states whose territories are not covered by the Unitary Patent. However, it is not possible to have double protection of an invention by a classic European patent and a Unitary Patent in the states covered by the Unitary Patent.

Costs of a Unitary Patent and reductions for small entities

What does it cost?

The request for unitary effect is entirely free of charge, i.e. no filing, examination or registration fees are payable to the EPO for this.

The renewal fee for maintaining a Unitary Patent is set at a very attractive and business-friendly level. The total cost of renewal fees over the first ten years, which is the average lifetime of a European patent, will be less than EUR 5 000.

A comparison of the fees and indirect costs shows that the overall cost of a Unitary Patent is significantly lower than the cost currently incurred in validating and maintaining a classic European patent in four countries.

The full cost-saving potential of a Unitary Patent becomes clear when the savings from its simplified administration are also factored into the equation. In today's fragmented post-grant phase, different renewal fees of different amounts must be paid in different currencies to different national patent offices, which also have different legal requirements, especially in terms of time limits. For the Unitary Patent, there is just a single renewal fee payable centrally to the EPO in a single currency (euro) and via a standardised procedure with one deadline and no obligation to use a representative.

What is more, SMEs are eligible for compensation of EUR 500 for the costs of filing a translation of their initial patent application into one of the three official languages at the EPO.

For further details, please see the Unitary Patent Guide.

Are there any reductions for small entities, such as SMEs, start-ups and universities?

Yes, a compensation scheme is in place to cover the costs of translating the application in the pre‑grant phase for individuals (natural persons), SMEs, non-profit organisations, universities and public research organisations. To be eligible for compensation, these entities must have their residence or principal place of business in an EU member state and must have filed the European patent application or Euro-PCT application leading to their Unitary Patent in an official EU language other than English, French or German.

However, compensation is granted only if expressly requested by the patent proprietor. The request for compensation must be filed together with the request for unitary effect. It must contain a declaration that the proprietor is a natural person or one of the entities mentioned above. The compensation – set at EUR 500 – complements the reduction in filing and examination fees already available when a European patent application and request for examination are filed in a language of an EPC contracting state other than English, French or German (Rule 6(3) EPC). For further details, please see the Unitary Patent Guide.

Besides this compensation scheme, the Unitary Patent system offers a range of other benefits for applicants with limited resources, such as SMEs, start-ups and universities. Many small entities today tend to rely on national patents. As a result, they often end up with no effective protection of their inventions in Europe at all or with protection only in a very small number of countries. The Unitary Patent system dismantles the bureaucratic and financial hurdles these small entities face in entering the EU market with their invention. A Unitary Patent offers broad and uniform territorial protection together with a business-friendly level of renewal fees. It eliminates the need to comply with validation requirements in each of the participating Member States and the high costs associated with this. These costs can be considerable, especially where a European patent is validated in several participating Member States, and typically include translation costs incurred for validations and the publication fees payable to the various national patent offices, as well as the fees charged by local attorneys or other service providers. By contrast, there is no need to retain different local attorneys, agents or specialised service providers for a Unitary Patent. On the cost benefits of the Unitary Patent, see also "What does it cost?" and the EPO website.

Moreover, proprietors of a classic European patent may have to litigate in parallel in all countries where it is validated. Such multi-forum litigation is expensive and complex and can give rise to legal uncertainty. As a court common to the participating Member States, the Unified Patent Court centralises the litigation for both Unitary Patents and classic European patents, which not only reduces the associated costs for the parties but also facilitates the development of consistent case law and so ensures greater legal certainty. For more information on the benefits for small entities in terms of the costs incurred before the UPC, please refer to its website.

Requesting a Unitary Patent

What are the requirements for obtaining a European patent with unitary effect (Unitary Patent)?

Before unitary effect can be registered by the EPO, the applicant must first obtain a European patent. A European patent application must therefore be filed and processed under the EPC in the same way as today.

In order to be eligible for registration as a Unitary Patent, the European patent must have been granted with the same set of claims in respect of all the 25 participating Member States. This condition must be met irrespective of whether all these states will in fact be covered by the Unitary Patent. It is therefore important not to withdraw the designation of any of the 25 participating Member States because this would rule out obtaining a Unitary Patent. Moreover, the European patent should not contain a different set of claims for any of the participating Member States, as this too would prevent the EPO from registering a Unitary Patent.

Once a European patent has been granted, the proprietor must file a "request for unitary effect" at the EPO to obtain a Unitary Patent. The request must be filed in writing – which includes filing by online means – in the language of proceedings no later than one month after the date of publication of the mention of the grant in the European Patent Bulletin. The request for unitary effect must also contain a translation of the European patent (see also "Are there any translation requirements when requesting unitary effect?" for further details).

The EPO recommends using Form 7000 to file the request.

What can I do if miss the one-month period for filing a request for unitary effect?

If, in spite of taking all due care required by the circumstances, you do not meet the period for filing a request for unitary effect – that is, one month after publication of the mention of the grant of the European patent in the European Patent Bulletin (see Rule 6(1) of the Rules relating to Unitary Patent Protection (UPR)) – you can request re-establishment of rights in respect of this one‑month period (see Rule 22(1) UPR). However, your request for re-establishment must be filed within two months of expiry of the one-month period (see Rule 22(2) UPR), and you must also file the request for unitary effect within the same two-month period (Rule 22(3) UPR). You must also pay the prescribed fee.

For further details, please see the Unitary Patent Guide.

When and for which European patents can a Unitary Patent be requested and are there any transitional measures?

A Unitary Patent may be requested for any European patent granted on or after the date of application of Regulations (EU) No 1257/2012 and (EU) No 1260/2012. These two regulations will apply from the date of entry into force of the Agreement on a Unified Patent Court (UPCA). The EPO will announce this date on its website.

To encourage early uptake of the Unitary Patent, the EPO has introduced two transitional measures for users.

  • Early request for unitary effect: this enables applicants to file a request for unitary effect before the start of the Unitary Patent system, which will allow the EPO to register unitary effect immediately when it starts, provided all the requirements under the Rules relating to Unitary Patent Protection are met.
  • Request for a delay in issuing the decision to grant a European patent: applicants can make this request after receiving a communication under Rule 71(3) EPC from the EPO ("intention to grant") and before approving the text intended for grant. This will ensure that the mention of the grant of the European patent is published in the European Patent Bulletin on or immediately after the date the Unitary Patent system starts and so prevent applicants from missing out on the opportunity to obtain a Unitary Patent in the transitional phase.


These options apply to European patent applications that have reached the final stage of the grant procedure and will become available, ahead of the entry into operation of the Unitary Patent system, from the date when Germany deposits its instrument of ratification of the UPCA. This date will fall between three to four months before the entry into force of the UPCA and will be announced on the EPO's website. The UPCA will enter into force on the first day of the fourth month after Germany deposits this instrument of ratification.

Detailed explanations and some examples of how these two transitional measures will work can be found here.

Will a patent document be issued for a Unitary Patent?

No additional documents beyond the European patent specification published by the EPO under the EPC will be published for a Unitary Patent. However, Unitary Patent proprietors will be sent a certificate once unitary effect has been registered.

Online filing

In Online Filing 2.0 (OLF 2.0), it says under Access rights/permissions that the forms associated with the proprietor are not available to the representative. Can the representative still file forms on behalf of the proprietor?

Representatives can file forms on behalf of a proprietor in OLF 2.0 by selecting "proprietor" when starting the procedure and then adding their own details in the "parties" section of the form.

When the request for unitary effect is finalised, Online Filing 2.0 (OLF 2.0) generates an XML file. Is it possible to automatically upload an XML with the required information?

Neither Online Filing (OLF) nor OLF 2.0 supports XML filings (i.e. attaching the form as an XML). However, the systems support the importing of packages. Therefore, if the package is constructed with a Patent Management System (PMS) gateway and it meets the standards and requirements, it can be imported into OLF and OLF 2.0.

The EPO will provide the technical documentation on the PMS gateway in good time at
epo.org/applying/online-services/online-filing/interface.html.

Representation

Do I need a professional representative to file a request for unitary effect?

The rules on representation are the same as apply under the EPC. Patent proprietors who have their residence or principal place of business in an EPC contracting state may act on their own behalf in proceedings before the EPO with respect to the Unitary Patent.

Patent proprietors who do not have a residence or a principal place of business in an EPC contracting state must appoint a representative and act through them in all EPO proceedings concerning their Unitary Patent, including the procedural act of requesting unitary effect (see Rule 20(1) and (2)(l) and (3) of the Rules relating to Unitary Patent Protection). However, compulsory representation does not apply to the payment of fees (Article 6 of the Rules relating to Fees for Unitary Patent Protection).

For more details, please see the Unitary Patent Guide.

Does a representative need a separate authorisation to act in procedures relating to the Unitary Patent before the EPO?

Representatives may be authorised either by an individual authorisation or by a general authorisation. However, an extra authorisation is needed for all proceedings relating to a Unitary Patent. In particular, an authorisation issued for all proceedings established by the EPC does not automatically cover the proceedings relating to a Unitary Patent. A separate checkbox has therefore been added to Forms 1003 (individual authorisation) and 1004 (general authorisation) which can be used to issue authorisation for all proceedings relating to a Unitary Patent. There are also now two new forms – 7003 and 7004 – which can be used, respectively, to issue an individual and a general authorisation that applies only to a Unitary Patent. When filing Form 7000 (request for unitary effect), it is possible simply to refer to a previously filed specific or general authorisation if it also covers proceedings relating to Unitary Patents.

Translations

Are there any translation requirements when requesting unitary effect?

During a transitional period, a request for unitary effect must be accompanied by a translation of the European patent as follows:

  • where the language of the proceedings is French or German, a full translation of the specification of the European patent into English; or
  • where the language of the proceedings is English, a full translation of the specification of the European patent into any other official language of the European Union.

In accordance with the requirements in Regulations (EU) No 1257/2012 and (EU) No 1260/2012 and in Rule 6(2)(d) of the Rules relating to Unitary Patent Protection, the EPO checks whether the translation has been filed together with the request for unitary effect. If not, it will give you another opportunity to file it within a non‑extendable period of one month. The translation does not have to be certified and the EPO does not check its accuracy as it has no legal effect and is for information purposes only. Nevertheless, according to Recital 12 of Regulation (EU) No 1260/2012, such translations should not be carried out by automated means.

For more details, please see the Unitary Patent Guide.

Filing of opt-outs

Is it possible to file a notification concerning an opt-out from the competence of the Unified Patent Court with the EPO?

No, notification of an opt-out from the competence of the Unified Patent Court can only be filed with the Unified Patent Court. It cannot be filed with the EPO.

Register for Unitary Patent Protection

Is there a specific register for the Unitary Patent and what does it contain?

Yes. A Register for Unitary Patent Protection has been set up as an integral but special, i.e. dedicated, part of the European Patent Register already kept by the EPO under Article 127 EPC. For reasons of legal certainty and transparency for users, the Register for Unitary Patent Protection has the same basic structure and functionality as the European Patent Register, but there are some new panel views for the Unitary Patent.

The Register for Unitary Patent Protection contains all the entries expressly listed in Regulation (EU) No 1257/2012. These include, in particular, the fact that unitary effect has been registered and the date of its registration, as well as other procedural information, such as the date of filing of the request for unitary effect for the European patent, the participating Member States in which the Unitary Patent has effect and the date of filing – and, if applicable, the date of any withdrawal – of a statement on licences of rights. Data on the payment of renewal fees for Unitary Patents and information on any decisions on the validity of Unitary Patents taken by the Unified Patent Court are also shown. For a full list of the entries, see Rule 16(1) of the Rules relating to Unitary Patent Protection.

Will the European Patent Register show any opt-outs from the competence of the Unified Patent Court?

Yes, as of the date of entry into force of the Agreement on a Unified Patent Court, the European Patent Register will show whether a European patent has been opted out of the exclusive competence of the Unified Patent Court.

Does the Register for Unitary Patent Protection display any information about the applicant's residence/principal place of business and place of business on the date of filing the European patent application within the meaning of Article 7 Regulation (EU) No 1257/2012 (European patent with unitary effect as an object of property)?

Article 7(1) Regulation (EU) No 1257/2012 ("Treating a European patent with unitary effect as a national patent") states: "a 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:

(a) the applicant had his residence or principal place of business on the date of filing of the application for the European patent; or

(b) where point (a) does not apply, the applicant had a place of business on the date of filing of the application for the European patent."

  1. Residence or principal place of business on the date of filing (Article 7(1)(a) Regulation No 1257/2012) in the Register for Unitary Patent Protection (Rule 16(1)(x) UPR)

    The request for grant of a European patent is to be filed using a form drawn up by the European Patent Office (EPO Form 1001, see Rule 41(1) EPC). For international applications under the PCT, the request must be made using Form PCT/RO/101 (see Rule 3.1 PCT). Whereas EPO Form 1001 requires applicants to indicate their residence or principal place of business (see Rule 41(2)(c) EPC), Form PCT/RO/101 requires them to indicate their residence (see Rule 4.5(c) PCT). In order to display the residence or principal place of business on the date of filing in the Register for Unitary Patent Protection, the EPO will provide a link to EPO Form 1001 in the case of a European patent application and a link to Form PCT/RO/101 in the case of a Euro-PCT application.

  2. Place of business on the date of filing (Article 7(1)(b) Regulation No 1257/2012) in the Register for Unitary Patent Protection (Rule 16(1)(w) UPR)

A place of business on the date of filing the European patent application within the meaning of Article 7(1)(b) Regulation (EU) No 1257/2012 (see Rule 16(1)(w) UPR) can be voluntarily indicated together with the request for unitary effect.

It can prove useful to have an entry in the Register for Unitary Patent Protection (which is an integral part of the European Patent Register) showing "a place of business on the date of filing" (see Rule 16(1)(w) UPR) in cases where an applicant, when filing a European patent application or international application under the PCT designating or electing the EPO (Euro-PCT application), did not have a residence or principal place of business in one of the participating Member States within the meaning of Article 7(1)(a) Regulation (EU) No 1257/2012, for example where this residence or principal place of business was in the United States of America or Switzerland (see Rule 16(1)(x) UPR).

Providing information on such a "place of business on the date of filing" is voluntary. However, it can only be provided together with the request for unitary effect (Rule 16(1)(w) UPR). If, in the case described above, no information concerning such a place of business is provided together with the request, German law will apply with regard to the treatment of the European patent with unitary effect as an object of property pursuant to Article 7(3) Regulation (EU) No 1257/2012.

Please see also the Unitary Patent Guide.

Will there be any specific code in the Register for Unitary Patent Protection or in the European Patent Bulletin?

Unitary Patents will be assigned a specific identifier (the identifier "C0") in the Register for Unitary Patent Protection, the European Patent Bulletin and in the data sets provided by the EPO, making it easier to identify them through the EPO's patent information products and services, e.g. Espacenet and Global Patent Index.

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