Unitary Patents and EPO Submissions

In order to render procedures simpler and more cost effective for applicants, Unitary Patents will allow patent protection in up to 26 EU Member States. This is done by submitting a single request to the EPO. The start of the new system is currently expected for the first half of 2019. Unitary Patents may not cover all participating Member States as some of them may not yet have ratified the UPC Agreement when it enters into force.

It is anticipated that many clients will continue with the older system of filing per country. This is a largely strategic decision to remove the ‘all ones eggs in a single basket’ scenario, where patent protection in the EU can be lost at a stroke.

Unified Patent Court

The Unified Patent Court (UPC) is an international court which has been established by certain participating EU Member States to handle infringements and validity of both Unitary Patents and European patents.

Unitary Patent Translations

According to the EPO, After a transitional period, no translations will be required when opting for a Unitary Patent. During this transitional period of six years (which may be extended up to a maximum of 12 years), the patent proprietor will have to file one full translation of the European patent specification, namely:

  • into English if the language of the proceedings before the EPO was French or German;
  • into any other official language of an EU member state if the language of the proceedings was English.

The translation must be filed together with the request for unitary effect. It is for information only and has no legal effect.

A translation of the claims into the EPO’s other two official languages will already have been filed at the end of the grant procedure. This means that if one of those other two EPO languages is chosen for the translation, only the description will need to be additionally translated when filing the request for unitary effect; the translation of the claims can be re‑used.

Where the language of the proceedings is English and the patent proprietor chooses to file a translation of the specification into an official EU language other than French or German, it will often be possible to revert to an application filed with a national patent office and to adapt it.

After expiry of the transitional period, a translation will no longer be required to obtain a Unitary Patent.

Compensation scheme

A compensation scheme will cover the costs of translating the application in the pre-grant phase for SMEs, natural persons, non-profit organisations, universities and public research organisations.

To be eligible, these entities:

  • must have their residence or principal place of business in an EU member state;
  • must have filed the European patent application or Euro-PCT application leading to the Unitary Patent in an official EU language other than English, French or German.

Compensation will be granted by the EPO’s Unitary Patent Division. The request must be filed together with the request for unitary effect. The compensation (set at EUR 500) complements the reduction in filing and examination fees already available when a European patent application and request for examination are filed in a language of an EPC contracting state other than English, French or German (Rule 6(3) EPC).

The UK government has recently published its approach to the Brexit negotiations:

The Future Relationship with the EU

Regarding the UK’s participation in the Unitary Patent and Unified Patent Court, a government spokesperson said: “The UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.”

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