25 EU member states have embarked on enhanced co-operation with a view to creating unitary patent protection for their territories. The Unified Patent Court will enter into force on the later of 1 January 2014 or four months after its thirteen member-country ratification, which must include Germany, France and the UK (Italy and Spain have elected not to participate).
Under the UPC regulations, a unitary patent is a European patent granted by the EPO, but to which unitary effect for the territory of the 25 participating states is given after grant. The grant of a unitary patent is at the patentee’s request, after an EPO patent grant. That is, a patentee can opt into the UPC, with the grant of a unitary patent, or opt out, retaining a conventional European patent.
What are the advantages of electing a unitary patent? One is the translation regime established for unitary patents. After grant of a European patent, a unitary patent requires no further human translations. Instead a high-quality machine translation will be adequate for the purpose of informing on the content of patent, although the translation regime will be more complicated until the machine translation system is fully operational.
The most significant advantage is the ability to enforce a unitary patent across all of the participating European countries in a single proceeding in a Unified Patent Court established under the UPC agreement. Rulings of the UPC on unitary patents (European patents that are not opted out), will have effect for all territories for which the European Patent is designated. This advantage of pan-European protection also carries a significant risk, however. A unitary patent can be revoked across Europe by a single ruling, rather than requiring separate revocations in each European country.
Since the Unified Patent Court will have a number of Regional Divisions, a unitary patent will also offer patentees a choice of where to sue. If, foir example, an infringement takes place in two or more countries, each of which has a UPC Regional Division, the patent may choose a Division that is perceived to be more patent friendly, or which is more likely to grant a preliminary injunction, oir may give a speedier result. Of course it will take several years for such distinctions among the Regional Divisions of the UPC to emerge.
In short, EP patentees will soon have an opportunity to test pan-European patent protection, weighed against the risk of pan-European patent revocation.