The European Patent Office has recently issued their guidance notes regarding obtaining, maintaining and managing Unitary Patents (UPs). Spanning to 40 pages, inevitably considerable detail is given. Some practical aspects of this note are discussed below.
Obtaining a UP
UPs can be obtained based on granted European patents by making a request to this effect up to one month following grant. If this due date is missed then reinstatement of the date can be requested within two months. It is to be noted, however, that traditional validation of a European patent has to be completed within three months from grant so that a request for reinstatement of the due date is likely to not leave any time to validate the European patent in the usual manner instead of obtaining a Unitary Patent.
Changes to the EPO register
The EPO has been given the task to provide a register of Unitary Patent protection. This register will be a continuation of the already existing European patent register, albeit with some extra panel views. As will be known, although 25 EU member states have signed up to the UP agreement, not all have ratified the agreement yet. After the UP system goes live a granted Unitary Patent will only cover those states that had, at the time, ratified the UP agreement. This means that there will be a transition period in which not all UPs cover all 25 UP member states. The proposed patent register will be helpful in identifying the territorial coverage of UPs granted during this transition period. It is noted that the Unified Patent Court (UPC) will maintain an additional register that indicates whether a traditionally validated European patent falls under the jurisdiction of the UPC or if the patent has been “opted out” of the jurisdiction of the UPC.
Changes in the structure of the EPO
The EPO has created a new division to fulfil all of its new duties relating to the Unitary Patent, including dealing with received requests for UPs. Appeals against decisions by this division do not, however, lie with the Board of Appeal (as is the case for all other first instance decisions made by the EPO) but with the Unified Patent Court as per the UPC agreement. The rules of procedure of the UPC require the UPC to decide on an application to reverse a decision by the EPO within 3 weeks from receipt of the application. The time limit for filing such an application is, however, a short three weeks from receipt of the decision. This said, the sum of the one month period for requesting a UP and the two three week periods are more than the three months period post grant for validating a European patent in the traditional manner. It is therefore recommended that requests for UPs are filed as early as possible post grant.