Long, long ago (as in last year), if an invention owner wanted to protect an invention in Europe, the owner had to either (a) apply for separate patents in one or more of the countries of Europe, or (b) submit a patent application to the European Patent Office (‘EPO’) and, after approval, register the patent grant with each of the European countries in which the invention owner wanted protection. The multiple registrations required multiple translations, multiple publications, and multiple attorney’s fees. The individual countries would then issue the multiple separate patents. The invention owner would pay annuities to each of the individual countries and would enforce the patents separately in the courts of the individual countries.
The process is messy, expensive, and can produce inconsistent results, discouraging patent protection in Europe for those of even substantial means. European patenting has been worth the cost mostly to large, well-heeled corporate invention owners.
That’s all changing. Since September 2024, an invention owner can apply for a ‘unitary patent’ in Europe. The unitary patent is an add-on to the existing system. The invention owner will follow the current procedures to apply for a European patent with the European Patent Office (‘EPO’). After the grant, the invention owner will NOT register the European patent with the individual countries but will instead file a “request for unitary effect” with the EPO within strict time limits. Only limited translations are required and the translation requirement expires after a transition period. There are no other filing fees. The EPO then will issue a “unitary patent” that is identical for all of the participating member countries. The unitary patent is enforced or challenged through a “Unified Patent Court,” whose decisions apply to all of the participating countries.
The current system of piecemeal annuities to the different countries is replaced by a single annuity paid to the EPO. The EPO claims the annuities are ‘very competitive,’ and equal to the current sum of annuities for the top four countries where European patents are currently registered. The new annuities are still very high compared to U.S. maintenance fees.
All post-grant administration is through the EPO, reducing friction and hence transactional costs.
The EPO member states are in the process of ratifying the treaties to enable the unitary patent system. Currently, 18 of the 25 EPO countries participate, notably including France, Germany and Italy. Britain participates in the EPO, but does not and cannot participate in the unitary patent system because of its withdrawal from the European Union. Notable non-participants are Spain and Poland, which may choose to participate in the future.
Here’s hoping that the new system increases the value of European patenting for U.S.-based inventors and invention owners.
— Robert Yarbrough, Esq.