How and when can you get a Unitary Patent

According to the currently expected timeline, the first Unitary Patents may be granted already by the end of this year. The latest communication of the Unified Patent Court (here) indicates a start of operations during the last quarter of 2022 or early 2023. 

What steps are necessary to get a Unitary Patent?

The procedure is quite simple. First you need a regular European Patent application at the EPO. Then, within one month after grant, you need to file a request for unitary effect such that the granted patent becomes a Unitary Patent that can be asserted in all member states of the Unitary Patent system with a single complaint at the Unified Patent Court (UPC). 



The timeline from the current phase of “provisional application” in which preparatory steps concerning the Unified Patent Court are carried out (e.g. selection and training of legally and technically qualified judges, testing of IT systems, etc.) to the start of operations is illustrated below.



Therein, Germany is the so-called Gatekeeper, as the deposit of the ratification document of Germany will trigger the start of the next phase, the so-called “Sunrise Period” of up to four months. Germany intends to carry out this step, once the Unified Patent Court is (close to being) operational. The Unitary Patent system will then start operations on the first day of the fourth month after the deposit of the ratification document of Germany. 

Unitary effect can be requested for all patents whose mention of grant is published on or after that day. The UPC will have exclusive competence for all Unitary Patents, concerning infringement and validity (Oppositions at the EPO will still be possible), and the UPC will also be competent for all European patents from that day on (unless these are opted-out), with the national courts  having concurrent competence for a transitional period of 7 to 14 years.

In order to facilitate the start of the new system, the EPO has already implemented measures that allow applicants to delay grant until after the sunrise period such that a request for unitary effect may be filed. As soon as the sunrise period starts, this will be possible for applications for which an intention to grant has been issued which the applicant has not yet approved. It will also be possible to request unitary effect for a pending application already during the sunrise period, if an intention to grant has been dispatched for that application. This may ensure that the unitary effect can be registered right at the start of the new system. 

Therefore, the decision whether or not to use the new option of requesting unitary effect for granted patents or patent applications close to grant will have to be made soon. 

Learn more about this new opportunity by signing up to our newsletter and register for one of our webinars on the Unitary Patent system!

For more information about the Unified Patent Court and the Unitary Patent, please visit our dedicated UPC page. 

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Georg Anetsberger
German and European Patent Attorney, UPC Representative, Partner

Georg Anetsberger