Unitary Patent

The unitary patent does not yet exist - exactly when it will come remains unclear, but the recent (July 2021) decision of the German Constitutional Court has cleared the biggest hurdle. The German Federal President can now complete the ratification of the treaty on the associated Unified Patent Court with his signature.

This German ratification is a mandatory requirement for the entry into force of the legislative package developed to establish the unitary patent. In addition to this requirement, a preparatory phase for the establishment of the Unitary Patent Court will still be necessary.

Currently, we therefore expect the system to come into force in about one year!

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The unitary patent should bring advantages to inventors and companies: Firstly, one protects one's innovations with a single patent in several countries at the same time and saves a lot of paper, time and costs. Above all, the otherwise very time-consuming translation into the national languages is no longer necessary. - The unitary patent can be applied for in German, English or French. - The effort for the translations is not to be underestimated in the conventional procedure. And instead of one fee per country, only one fee is charged for all participating countries.

Despite all the advantages and the simple application, there are some things to consider. For example, if the patent is not granted, the entire procedural fees are lost, just as with the bundle patent. A risk that can be minimized in advance with a professional search from the Austrian Patent Office. Such a search is available for € 258 and is completed within a few months. Even better: With a national patent or utility model application, one also receives this search and at the same time secures the priority date. Applicants should therefore continue to go first to the Austrian Patent Office and only then apply for the unitary patent.

The new granting procedure works according to the principle "One for all, all for one". If the patent is granted, it is valid in all participating countries. However, if it is successfully challenged in one of the countries, then it also loses its effect in all countries. The challenge is heard before one of the central chambers in Paris or Munich, depending on the technical subject matter (the third planned seat in London will be cancelled following the UK's withdrawal).

Infringement of a unitary patent is also heard before local chambers. This can be in Stockholm, Milan or Vienna, to name just three examples. Appeals against the decision of a local chamber can in turn be made to one of the central chambers.

The Unitary Patent will enter into force as soon as Germany also ratifies the related Agreement on the Unified Patent Court.

After the signature of the German President, Germany can determine the date of entry into force (by formally depositing the instrument in Brussels).

It is expected that Germany will wait with the entry into force until all legal and practical problems are clarified.

The preparatory phase is expected to last 8 to 12 months.