The world of intellectual property (IP) is constantly evolving and for Canadian entrepreneurs looking to expand their businesses into Europe, staying informed about these changes is crucial. In this blog post, we'll dive into the Unitary Patent (UP) and the Unified Patent Court (UPC), to explore how these developments can impact your business. Are these new systems game-changers for protecting your IP, or could there be hidden complexities to consider? Let's find out.
The changing landscape of European patents
Traditionally, if you wanted patent protection in Europe, you had to apply to individual national patent offices as most countries had their own rules and procedures. It was a cumbersome and expensive process, especially if you aimed to protect your invention in multiple countries. However, in the 1970s, the European Patent Office (EPO) was established, simplifying the process. With a single European patent application, you could pursue protection in various countries. However, there was a catch: it was only the application process that was streamlined; the application would still be examined, granted and subject to the individual national laws and procedures. It was not one single unitary patent.
Then, on , a ground-breaking change took place when the Unitary Patent was introduced. Unlike traditional European patents, the UP is a single patent covering multiple European jurisdictions. Currently, it spans 17 countries with more to come as agreements are ratified.
So, what are the advantages of applying for a Unitary Patent?
There are 2 major advantages to consider:
- Cost-effectiveness – For businesses looking to protect their inventions across many European countries, the UP offers substantial savings compared to traditional national validations.
- Simplified litigation – With the UP, you can enforce or challenge your patent through a single court, the Unified Patent Court, eliminating the need for parallel litigation in multiple national courts and opening the door to pan-European injunctions.
Challenges of the Unitary Patent
However, the UP has its drawbacks and you should understand its limitations. This type of patent is tied to European Union (EU) law and excludes non-EU countries like Norway and Switzerland. Additionally, your IP won't be protected in countries that haven't signed the agreement, like Spain.
The UP is also vulnerable to central revocation, meaning if you lose the patent, you lose it in all countries that are covered by the patent. Additionally, the renewal fees for the UP cannot be scaled back, unlike individual national patents.
The good news is that you can adopt a hybrid approach, combining the UP and national validations to fill in the gaps.
To determine whether the UP is right for your business, consider using the UP calculator tool. This tool was developed by experts and simplifies the cost-benefit analysis by factoring in various considerations, including translation requirements.
The Unified Patent Court: A new era of patent litigation
Now that we've explored the Unitary Patent, let's talk about how patent disputes are settled using the UPC. This new court exclusively handles unitary patents and notably, existing European patents.
The UPC's goal is to harmonize patent litigation across Europe, reducing complexity and ensuring consistent decisions. It aims for a speedy resolution of patent disputes, with a target timeline of 1 year from filing to decision.
If you're not ready to embrace the UP and the UPC, you can opt out of your existing patents from the UPC's jurisdiction for a transitional period of 7 years, which may be prolonged by up to a further 7 years. By opting out, you are shielded from potential central revocation. However, it's important to consider the associated costs and potential delays in processing the request.
For Canadian small and medium enterprises, inventors and businesses looking to navigate these changes effectively, resources are readily available. The EPO offers comprehensive information on both the Unitary Patent and Unified Patent Court. You can also listen to episode 29 of our Canadian IP Voices podcast for an explanation from patent agent Anthony Dearden about key considerations for anyone applying for patents in Europe.
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