The UP has been established via enhanced cooperation under Regulation 1257/2012 of 17 December 2012 implementing enhanced cooperation in the area of unitary patent protection. It is a single patent right in all states that took part in the enhanced procedure.
UPs will be applied for like a standard EP, centrally via the EPO. Once the UPCA is in force any new EP application or EP application that is already in the EPO system can be converted into a UP within a month of grant (the EPO cannot start granting UPs until the UPC system is in place).
Now that Italy has formally asked to join the enhanced cooperation, it is expected that the UP will cover 26 of the 28 Member States (excluding Croatia and Spain who have not taken part in the enhanced cooperation procedure so far). However, although Poland participated in the enhanced cooperation, since Poland has not signed the UPCA, UPs will not be enforceable there.
EPs will still be available (although after the transitional period they must be litigated in the UPC system – i.e. 7 years, plus a further 7 years if the assessment to be conducted 5 years into the UPCA decides this is appropriate).
Even if a UP is used, separate EPs will need to be obtained for Norway, Turkey and Switzerland (which are not EU MSs and thus cannot be part of the UPC/UP system) and also for any MSs which have not taken part in the enhanced cooperation procedure (currently Spain, Italy and Croatia) or which have not signed up to the UPCA (currently Spain, Poland and Croatia).
National patents will still be available from national patent offices and will be litigated in national courts.
A consolidated version of the draft Rules relating to the Unitary Patent Protection (this deals with how the EPO will administer it) is now available here. This is referred to as the 17th draft. An 18th draft has not yet been approved or agreed by the Preparatory Committee and is expected to be confirmed in October.
The EPO has adopted what it refers to as a business friendly fee pattern for the fees payable for unitary patents. The Select Committee of the Administrative Council of the EPO endorsed the "True Top 4 proposal" tabled by the European Patent Office on renewal fees applicable to the unitary patent. This proposal corresponds to the charges for renewal in the Top 4 most popular validation jurisdictions: Germany, France, Great Britain and the Netherlands (the alternative had been the "Top 5" approach which included Swedish designations). There is provision for a reconsideration of this Top 4 basis after 4 years. The EPO commentary states that " this decision clears the way for other final preparatory measures for the unitary patent".
EU Internal Market and Industry commissioner Elzbieta Bienkowska released a statement saying that this fee pattern "means that a company protecting its innovation with the Unitary Patent will pay less than €5000 in renewal fees over 10 years covering a territory of 25 Member States, instead of the current level of around €30 000 which has proven to discourage companies from patenting in Europe. The agreed level of fees will reduce the gap between the cost of patent protection in Europe compared with the US, Japan and other third countries. I have always argued that an affordable level of renewal fees is a key element to ensure the attractiveness of the Unitary Patent to companies, especially start-ups."
The President of the EPO also released a statement suggesting that the Select Committee would decide how the fees would be split between patent offices by the end of this year – another major stumbling block.
These recent developments suggest that little is now left to hold the UP and UPC system up, other than the completion of ratification and the practical arrangements for the new courts, although judicial salaries may become an issue.
For more comparative detail on fees see the "Comparison of fees and external costs between a European Patent and a Unitary Patent", submitted by the President of the EPO to the Select Committee to assist in their deliberations, which compares the costs of registering EPs in 1,2,3,4,5,6 or 7 designations and all 25 designations that would be covered by the UP under current participation rates) with the cost of the revised proposal. The comparison assumes that grant is in year 4. The figures show cumulative savings on this basis for 4 or more designations over 20 years although all the assumptions should be reviewed.