When was the Unitary Patent system launched?
The Unitary Patent system, composed of the EU regulations (No 1257/2012 ; No 1260/2012) and the Agreement on a Unified Patent Court (UPCA), was launched on 1 June 2023.
On that date, 17 member states had ratified the UPCA, namely Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden.
Since the start of the system, Romania has also ratified the UPCA, making it the 18th state joining the system. Additional Member States are expected to ratify the UPCA in the coming years. For the state of play regarding ratification, please see the website of the Council of the EU.
Territorial scope of a Unitary Patent
A Unitary Patent covers the territories of those participating member states in which the UPCA has taken effect on the date of registration of unitary effect by the EPO.
The instrument of ratification deposited by the government of Romania (RO) took effect on 1 September 2024 (Article 89(2) UPCA).
This means that any Unitary Patent registered since this date covers the territory of 18 member states (second generation of Unitary Patents), whereas any Unitary Patents registered before covered 17 member states only (first generation of Unitary Patents).
The coverage of a given generation of Unitary Patents stays the same for the entire lifetime of those patents, irrespective of any subsequent ratifications of the UPCA after the date of registration of unitary effect. In other words, there is no extension of the territorial coverage of Unitary Patents to other member states that ratify the UPC Agreement after registration of unitary effect by the EPO.
Delay of registration of unitary effect
To allow users to benefit from the extended territorial scope of the Unitary Patent (i.e. the second generation covering Romania), the EPO will accept requests for a delay of the registration of unitary effect (see notice from the EPO dated 5 June 2024, OJ EPO A61). A similar approach is likely to be followed prior to the accession of any other member states to the UPCA in the future.