Further to the recent failure to create an EU patent covering the entire EU territory and the launch of enhanced cooperation with the involvement of currently 25 EU Member States, in accordance with Article 20 TEU and Articles 326 to 334 TFEU, the EU urgently needs to create a unitary title covering such EU Member States.
A unitary patent would make the existing European system much simpler, less burdensome, significantly less costly and thus more affordable for inventors. Once granted, a unitary patent would no longer have to be validated separately in any of the 25 participating Member States. This would remove, in particular, very expensive translation and other multiple administrative requirements in participating Member States. The translation requirements would be built on the existing language regime of the EPO. The unitary patent would be examined and granted in one of the existing official languages of the EPO – English, French or German. Applicants in the EU whose language was not one of those languages would have the option to file in any other official language of the EU. The costs for translations into one of the official languages of the EPO would be eligible for compensation
A unitary patent would increase the economic value of inventions and protect them better when compared with the current system. Currently many inventors, mainly European SMEs, patent their inventions in a handful of Member States. This is mainly because of the prohibitive costs involved in seeking protection by traditional European patents, not because of a lack of economic viability of the respective inventions.
This leads to a fragmentation of the EU's single market since such inventions are not protected in other Member States. The current system thus diminishes the economic value of European inventions. By contrast, a unitary patent would stimulate research, development and investment in innovation, helping to boost growth and competitiveness in the EU.
It should be noted that the unitary patent would be made available to all applicants in the EU on a non-discriminatory basis. Their inventions would be protected in all EU Member States participating under the enhanced cooperation. Furthermore, enhanced cooperation in this area would be open for accession by non-participating Member States at any time.
Another important element in the overall reform of the patent system in Europe is the creation of a unified European patent jurisdiction. The current system entails multi-forum litigation since companies may have to litigate in parallel in all countries where the European patent is validated. This results in very considerable costs, complexity and legal uncertainty. A common court with jurisdiction for both traditional European patents and patents with unitary effect would ensure the consistency of the whole patent system in Europe.
The pending patent reform package would provide for a unitary patent covering the territory of the EU Member States participating in enhanced cooperation. It would also set up a specialised patent court structure with a pan-European reach ensuring legal certainty across the EU's single market. Moreover, the reform package would involve very substantial cost savings for users of the patent system, in particular SMEs.
The European patent with unitary effect will be a third option for applicants alongside patents designating individual or several Member States available through the European Patent Office or national patent offices. Applicants will be able to choose amongst different types of patents for their respective inventions. They would be able to apply either for a unitary patent covering 25 EU Member States or a traditional European patent covering a number of EPC Contracting States.
For up-to-date information on progress towards implementation of unitary patent protection, and the creation of a unified European patent jurisdiction, please go to the DG Internal Market and Services website, here: