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Changes to the European Patent System – what you should know

Most patent owners will know that it is possible to obtain a European patent covering most European countries. Soon there will be a second option – a Unitary Patent.

What are the differences and which option should you choose?

Under the current system, a single European patent application can be filed to protect an invention in most European countries. These countries are members of the European Patent Convention (EPC). Some non-European Union countries, such as Switzerland, Norway and now the United Kingdom, are EPC members and so are covered by a European patent.

Once a European patent is granted, and given effect (validated) in individual countries, the patent functions separately in each of those countries. This means that the patent in one country will not be affected if the patent is overturned (revoked) in another country.

A Unitary Patent is a patent that functions as a single patent right for all members of a new pan-European court known as the Unified Patent Court (UPC). A Unitary Patent is effective only for European Union member states that have ratified the UPC Agreement. At present, some EU member states have not yet ratified the agreement, while other non-EU member states such as the United Kingdom will never fall under the jurisdiction of the UPC.

See the colour-coded table below indicating those countries party to the EPC, the EU, and the UPC.

Adopting the Unitary Patent option means that it will be possible to assert the patent in multiple European countries in a single court proceeding. But it will also mean that if another party successfully revokes the patent, the patent will be revoked across all UPC-member states.

The Unitary Patent option is cost-effective in that renewal fees do not need to be paid annually for the patent in each separate country as is the case with the current European patent system.

From 1 June 2023, a European patent will be granted as a Unitary Patent unless the owner “opts out” of the UPC system.

Should you opt out? Our view is yes, in most circumstances, you should opt out.

Although paying renewal fees in multiple countries each year is avoided by not opting out, the risk of losing your patent rights in multiple European countries in a single court proceeding is likely to be too high.

Those who have current European patents should decide soon whether or not to opt out. To avoid the risk of revocation in a single court action, a request to opt out must be made by 1 June 2023 when the UPC opens. There is a sunrise period beginning 1 March 2023 to enable owners of European patents to do this prior 1 June 2023.

For pending European patent applications, and any European patent applications yet to be filed, we recommend opting out of the UPC system.A decision to opt out may be made at any time before grant of the patent.

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