There are currently 25 EU Member States which have participated in the enhanced cooperation procedure to establish the unitary patent. With Italy having now requested to be included this would bring the total to 26. However unless these states have also ratified the UPCA then the UP will not be effective in their jurisdictions. Some states have participated in the UP but have not signed the UPCA. Further some states declined participation in the UP but have signed the UPCA.
See the table produced by the Council of Europe for a summary of which states have signed up for UP enhanced cooperation and signed/ratified the UPC Agreement (see also our own summary page on this here). Since no non-Member State countries are able to take part in the UPCA the UP will not extend to all the countries in relation to which it is possible to request EP designations (all EPC states).
EU Member States where the UP will not apply (given the current state of UP participation and UPCA ratification):
- Spain – has declined involvement in UP or UPC and has challenged the use of the enhanced cooperation procedure to establish the UP and the language regime at the Court of Justice of the European Union which rejected both attempts (see our IP e-bulletin of 5 May 2015 on the CJEU's decision to reject the latest challenges)
- Poland – participated in enhanced cooperation establishing the UP but has said it will not sign the UPC (for now)
- Croatia – has not agreed to the UP enhanced procedure or signed the UPC Agreement. However Croatia only joined the EU on 1 July 2013 so it may well catch up with these agreements soon. There is no suggestion that it has any particular objections to the UP/UPC system.
The UP will also not apply in EPC member states which are not eligible to be signatories of the UPC Agreement, although they are European Patent Convention signatories and are options for desgination under the EP – Norway, Turkey and Switzerland.
Italy has recently announced that it will now participate in the enhanced cooperation (having previously challenged its legitimacy at the CJEU (heard with Spain's first application)) and has already signed (although not ratified yet) the UPCA.
Late joiners to the EPC – European patents applied for before 2008 (for Croatia) and 2007 (for Malta) which are coming up to grant will not be able to extend to those states as they were not signatories to the EPC when the applications were made. Thus if a UP is requested when such applications come to grant, it will not be possible for it to cover these states even when Croatia has signed the UPCA and participated in the enhanced cooperation for the UP (Malta has signed the UPCA and agreed to the UP enhanced cooperation).