The establishment of EUP has, at its core, the objective of overcoming limitations in the existing European patent system, as well as streamlining the process of obtaining patent protection across EU member states. The new EUP system is anticipated to commence on 1 June 2023, and is directly linked to the creation of the Unified Patent Court which will have jurisdiction over Unitary Patents.
The creation of the Unitary Patent Court (UPC), in conjunction with EUP, aims to streamline the judicial enforcement of patents across EUP’s participating countries. In so doing, UPC provides a more clear, consistent and predictable legislative framework for addressing patent disputes. The intention of the UPC is a single set of rules and a unified judiciary, thus reducing the risk of contradictory decisions across national courts and thus increasing legal certainty for patent holders.
The simplified and cost-effective IP protection path offered by the EUP has great potential to encourage more EU SMEs to invest in research and development, protect their intellectual property in far more cost effect and streamlined ways, thus fostering innovation and economic growth within the EU and protecting competitive advantages within Europe and for Europe. The new system represents the biggest change to patent law in Europe for 50 years, and aims to create a single and centralised approach to patent registration and litigation across all EU Member States.
In the past (and currently until EUP takes effect), inventors conventionally applied for European Patents centrally through the European Patent Office (EPO). At the point of grant these patents were then converted into a number of national patent rights depending on the breadth of EU member state coverage required by the inventor, thus making the national validation step time consuming and expensive. Owing to this, the European Commission and the European Parliament have worked jointly to resolve the multiplicity of actions associated with the same European Patent “family”. Consequently, the new EUP system is expected to provide a major boost for innovation across the EU, allowing companies to obtain broad patent protection with a clear and simplified path through the EPO, reducing the cost and complexity of enforcing patents, as well as reducing the risk of different outcomes in different countries.
Importantly, the filing and prosecution of European Patents at the EPO is not subject to any changes. Once a patent grants at the EPO, a European Patent (EP) will continue to support the option for validation in selected EU member states as a bundle of national rights and, significantly, a new unitary patent effect option will also become available at the EPO.
The EUP’s main points regarding implementation are explained in a comprehensive guide available from the EPO.
Inlecom Commercial Pathways (ICP), the IP experts in the EC funded ETERNAL project, have been supporting dozens of EU SMEs over several years in securing patent protection for their commercially sensitive and strategic innovation IP. The ICP team are currently tracking 147 patent dockets across various EU member states and evidencing a positive grant/issuance success rate that is consistently well ahead of the EU average. We asked members of the ICP team to share some thoughts on what EUP offers for European SMEs and researchers.
The EUP builds on decades of work and efforts to harmonize and simplify the European patent system. Prior to EUP’s introduction, inventors seeking patent protection across multiple European countries were required to navigate a complex and fragmented landscape of national patent systems, which led to increased costs, time, lengthy proceedings, and differential legal uncertainties across EU member states. EUP takes a significant step forward in both simplification and streamlining a path for inventors. The EUP offers a more cost-effective route to EU patent protection by eliminating the need to validate and enforce individual patents in each member state. This translates to significant cost savings in reduced translation legal and administrative costs, and reduced patent annuity and maintenance costs for patent holders.
Corina Hanrahan (ICP Senior Innovation and Commercialisation Manager)
The Unitary Patent opens the door for a new era of IP protection in Europe. This represents a major step forward in the harmonisation of the European patent system, offering a single, unitary, patent that is valid across all participating countries, and a single court system to handle disputes. Innovative solutions to contemporary problems are particularly important for the European Commission, and given that the purpose of the unitary patent is to foster innovation by making IP protection more accessible, the EUP announcement offers tremendous merit. With the new system, European businesses will be able to benefit from broader and more effective patent protection since it simplifies and minimizes the cost of patent coverage in Europe for SMEs.
Dr. Vassilios Albanis (ICP Senior Innovation Consultant)
EUP is indeed a promising development. It is still relatively early days, and more work and dialogue has yet to unfold prior to all EU members states confirming full support.* For example, concerns have been expressed by a number of member states that the UPC may undermine national sovereignty by transferring judicial authority and autonomy from the conventional member states national court systems to a central UPC judicial authority, and these concerns are currently being discussed with a view to resolving what has been agreed by several experts as important and fundamental points. As with all new, significant, and promising EC and EPO initiatives, a good deal of time and discussion will be required over the coming years to arrive at an answer that all members states will both sign up to and agree with. I expect to see EU member states work through their concerns and arrive at a consolidated and agreed answer across Europe, and I am looking forward to the ICP team helping EU SMEs succeed and benefit from the new Unitary Patent effect.
Dr. Colin Keogh (Senior Innovation Consultant)
*The map below shows the status of EU Member states with respect to participation and ratification of the Unified Patent regulation and Unified Court agreement (Information correct at April 2023).
Image provided under Creative Commons Attribution-ShareAlike 3.0 Unported Adapted from original graphic by L.tak
EUP is certainly a positive step forward, and a valuable addition to the EU’s IP protection arsenal for EU SMEs, industries, and researchers. Within the ICP team we will continue to take both a holistic and diversified approach when giving guidance to our partners and clients. As an example, in several previous patent cases we’ve recognised that evidence of early patent protection is important for reputational, investment confidence and competitive reasons. Costs, in particular for early stage SMEs, has always been an important factor. Compared to national filings, the conventional EP path requires several years to arrive at granted/issued patents and comes with a higher degree of risk, uncertainty, increased costs, and a long history of higher rejection rates at EPO. In contrast, the path to national filings has a much faster turnaround time, a well evidenced lower risk of rejection, lower costs in bringing patents to grant, and can, with careful planning, open the door to Unitary Patent effect at the inventor’s discretion at the point of grant/issuance.
Dr. Pat O’Sullivan (Director of Innovation & CTO ICP)
Clearly it is important to look at the individual merits and demerits of EPO, EUP, Regional and National filing paths in the broader context of the underlying business need, business requirement, and operational budgets, as well as the underlying and strategic rationale driving a business’s IP protection goals. Indeed, this is another reason why EUP is a positive step forwards: it is another valuable tool in the IP protection arsenal for EU organisations where this option make sense – typically where the business needs to seek broad patent protection across many EU member states. For those whose competitors operate in a narrow number of EU member states, the path towards selective national filings will continue to carry lower risk and more expedient turnaround times in quickly evidencing business results.
In an EU-wide framing clearly there is no one-size IP protection answer that fits all, but EUP certainly has great potential to satisfy an important and relatively significant subset of EU businesses where broad EU patent protection is a key business goal. We look forward to seeing the progress and development of EUP in 2023 and beyond.