A guide to the UPC and the UP - Flipbook - Page 20
Introduction
Unitary Patent Regulation
2-01
The Unitary Patent Regulation and the Translation Regulation are the main legal instruments
for the creation of the legal conditions for obtaining Unitary patent protection.
2-02
The aims and purposes of the creation of Unitary patent protection are summarised in the
recitals to the Unitary Patent Regulation. It is expected that Unitary patent protection will foster
scientific and technical advances and the functioning of the internal market by making access
to the patent system easier, less costly, and legally secure.
2-03
In this context, Unitary patent protection will be made available to all proprietors of a European
patent, irrespective of whether the proprietors are from Participating Member States 1 or from
other states, i.e. Unitary patent protection will be available to anyone regardless of their
nationality, residence or place of establishment. 2
2-04
It was decided not to put into place a new granting system for European patents with unitary
effect. Instead, it was chosen to base the system of Unitary patent protection on the granting
system for European patents at the EPO. This is stipulated in recital 5 Unitary Patent Regulation
where it is stated that a European patent granted by the EPO should, at the request of the
patent proprietor, benefit from unitary effect.
2-05
This wording makes it very clear that there should not only be no separate granting
proceedings to obtain a Unitary patent, but there should also be no formal designation
of “European patent with unitary effect” at the date of filing of the patent application
or at any other point in time during the prosecution of a patent application.
2-06
In fact, it is stipulated in recital 7 Unitary Patent Regulation that the Unitary patent protection
should be achieved by attributing unitary effect to European patents in the post-grant phase.
Although this Unitary patent protection is achieved only in the post-grant phase, the Unitary
patent protection takes effect retroactively in the Participating Member States as from the
date of publication of the mention of the grant of the European patent in the European
Patent Bulletin. 3
2-07
As to the administration of European patents with unitary effect, the EPO has been given
certain administrative tasks, in particular as regards the administration of requests for unitary
effect, the registration of unitary effect and of any limitation, licence, transfer, revocation or
lapse of European patents with unitary effect, the collection and distribution of renewal fees,
the publication of translations for information purposes during a transitional period and
the administration of a compensation scheme for the reimbursement of translation costs
incurred by applicants filing European patent applications in a language other than one of
the official languages of the EPO, 4 i.e. English, French or German.
1
2
3
4
Note that the Unitary Patent Regulation and the Translation Regulation refer to participating Member States which are
defined as those Member States participating in enhanced cooperation in the area of unitary patent protection (art.2(a)
Unitary Patent Regulation). Since a Unitary patent has effect in those participating Member States in which the Court has
exclusive jurisdiction (art.18(2) Unitary Patent Regulation), “Participating Member States” has the same definition as
“Contracting Member States”. The former is used in this chapter because of its use in the Unitary Patent and
Translation Regulations.
recital 4 Unitary Patent Regulation.
recital 8 Unitary Patent Regulation and art.32(1)(f) UPCA.
recital 17 and art.9(1) Unitary Patent Regulation.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 10
