The new EU unitary patent: Differences with the European patent
The European patent with unitary effect (EU patent) differs significantly from the well-known European patent (EP patent).
An EU patent ensures uniform patent protection in all participating EU states. For this purpose, a unified court system is also created, which can decide on the patents valid across Europe with regard to alleged acts of infringement in several EU states together. The introduction of the so-called unitary patent and the associated court system will probably also fundamentally change the strategy in Germany in the medium term. The unitary patent will exist alongside national patents and the European patent.
The European Patent (EP Patent)
The EP patent can be obtained by way of a unitary application and grant procedure before the European Patent Office. The EP patent is granted with effect for a large number of states on the European continent (currently 38), and the applicant must then decide for which countries this protection should effectively occur or be maintained. This allows for a very comprehensive as well as a very selective choice of relevant states.
The well-known Patent Court System
At present, a single national part of an EP patent or (only) acts of infringement of this nation are judged before the court having jurisdiction there. If cross-border acts of infringement exist, separate proceedings must be conducted in all nations to examine the infringement and the legal status of the national part of the EP patent. This is sometimes seen as too costly and a court system leading to many divergent decisions.
The European Patent with unitary effect (EU patent) and Unified Court
The unitary patent is a right that has a uniform effect in the participating EU states. Newly created EU authorities or EU courts are now to decide on the body of law as a whole or on an infringement of a unitary patent in the entire economic area.
This offers the opportunity to have cross-border patent infringement matters decided by the courts in a single procedure. At the same time, there is also a higher risk of losing the asserted patent with a single procedure and thus releasing the entire economic area.
The planned changes in European patent law would mean that in the future, applicants for a patent will be faced with the decision of whether to apply for a national patent, an EP patent or an EU patent. This also means that German and European companies will have to align or adapt their patent portfolio strategies to this end.