B4B readers ask, our industry experts from the region answer: The planned EU patent is intended to standardize and simplify patent protection. But what exactly distinguishes the EU patent from the previous system? Dipl.-Ing. Thomas Schwarz, patent attorney at CHARRIER RAPP & LIEBAU, explains the new patent system.

The planned EU patent or unitary patent (officially: European patent with unitary effect) represents a new patent system which, in addition to simplified unitary patent protection for all participating EU member states, is also intended to create the possibility of enforcing and defending patents through a unified court.

The EU patent or unitary patent has the following differences compared to the previous system:

• A unitary patent granted by the European Patent Office in a centralized procedure provides uniform and comprehensive territorial protection in all participating EU member states. These are currently all EU states, with the exception of Spain and Croatia.
• Unlike the EP patents previously granted by the European Patent Office, which break down into a bundle of national protection rights after grant, a unitary patent does not have to be validated in different countries after grant.
• For a unitary patent, only one common renewal fee is due annually with effect for all EU states covered by the unitary patent. This means that different annual fees with possibly different deadlines no longer have to be paid in different states.
• A unified patent court centralizes litigation in connection with unitary patents, so that it is no longer necessary to initiate legal proceedings in each individual EU state. This is intended to ensure uniform jurisdiction in patent matters.
• Transfers of rights, licenses and other rights no longer have to be entered individually in the national patent registers for each country. Instead, a single entry in a register administered by the EPO will suffice for unitary patent protection.

However, the EU or unitary patent is not yet in force. The prerequisite for this is the ratification of a Unified Patent Court Agreement (UPC) by at least 13 member states, including Germany, France and the United Kingdom as mandatory members. A ratification law already initiated in Germany was declared null and void by the Federal Constitutional Court following a constitutional complaint on the grounds that the Bundestag did not pass the law with a majority of two-thirds of all members. Thus, it remains open when the EU patent with a largely uniform patent protection will become reality in the European Union. Until then, it will be necessary to fall back on the well-known and proven European patent.

Do you have any questions for patent expert Thomas Schwarz, or would you like more in-depth advice?