The European Unified Patent Court will open and start accepting cases on April 1, 2023, which also means the beginning of the new European Unified Patent. The Unified Patent Court will fundamentally change the way patents are enforced, and UPC decisions, including patent revocation decisions, as well as remedies including damages and injunctions, will affect all UPC member states. The new European Unified Court will offer new opportunities for business. As enterprises and Chinese applicants who are about to apply for patents in Europe, they need to understand the impact of this new system and adjust their strategies for commercialization and litigation of European patents accordingly.
The number of pages will start from 7 aspects to explain the possible impact of the European unitary patent on Chinese applicants.
1. What is the European Unitary Patent
A unitary patent is a "European patent of unitary effect". After a European patent application has been granted by the European Patent Office (EPO), the European patent may be registered as a unitary patent at the request of the patentee. The unitary patent will have uniform effect in all member states participating in the unitary patent system.
In other words, in addition to the traditional mode of designating European countries separately after the grant of a European patent, applicants now have a new choice, which is the registration method of the European unitary patent. The country takes effect, which saves the applicant from specifying multiple times to each European country. For applicants, it is undoubtedly a more efficient way.
However, the traditional method, that is, the method of assigning to each country after the European patent is granted, will not be cancelled, and the applicant has obtained a new way to obtain patent protection in Europe. The new unitary patent route will exist alongside the traditional European designation model, to be chosen by applicants according to their needs.
2. European Unitary Patent Application Procedure
After the European patent application is granted, the patentee can submit a "unitary effect request" to the EPO within 30 days after the date of publication of the grant mentioned in the European Patent Bulletin in accordance with the rules for the protection of the European single patent.
3. Territory of European Unitary Patent Protection
The countries participating in the European single patent system are all EU countries. Among the 27 EU countries, 25 countries have signed the EU regulations of the single patent system, but only 17 have been approved to take effect. It is expected that when it comes into effect in 2023, These 17 countries will have immediate access to the Unitary Patent System: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Slovenia, Sweden.
As time progresses, it is predicted that more countries will approve and join the European Unitary Patent and enter the scope of protection of the Unitary Patent. However, it should be noted that subsequent countries joining in will not look back on the geographical scope of protection of the registered unitary patent, that is to say, the geographical scope of protection of the unitary patent remains unchanged throughout the life cycle of the maintenance of the patent right. This also means that unitary patents registered at different times may have different territorial scopes of protection.
EU countries participating in the Unitary Patent System, light areas represent countries that have signed but not ratified, and dark areas represent countries that have signed and ratified.
4. Impact on Chinese applicants
For Chinese applicants, when implementing protection for European patents in the future, the national and geographical scope of protection needs to be considered from the following two aspects:
For countries that do not participate in the unitary patent system, Chinese applicants still need to take effect in a separate designation in the traditional way;
For countries that have participated in the unitary patent system, Chinese applicants need to consider whether to file a "single patent request" or to designate them separately.
However, applicants can only choose one of the above two methods. Therefore, Chinese applicants need to choose these two methods within the scope of countries participating in the single patent system according to their actual needs.
5. Translation requirements in the granted registration stage
During the transition period:
After the operation of the single patent system and system, the EU will set up a translation transition period. During this transitional period, when the patentee registers the European patent as a unitary patent through the unitary patent route, he shall provide a full-text translation of the granted patent in accordance with the following requirements:
(1) If the language of the granted patent is French or German, an English translation of the full text of the granted patent shall be provided;
(2) If the language of the granted patent is English, a translation of the full text of the granted patent in any official EU language other than English should be provided.
After the end of the transition period, the patentee does not need to submit additional translations.
Therefore, for Chinese applicants, the most direct feeling may be the change of fees. The country selection of unitary patents will also have a more direct impact on costs. It is conceivable that if the target countries to be registered include two or more countries that require full-text translations of granted patents, then the translation costs for registration through the single patent route can be significantly reduced.
6. Annual Fee/Maintenance Fee
After the implementation of the single patent, the annual fee and payment method of the authorized patent will be changed.
6.1 Amount of annual fee
After registering a unitary patent through the unitary patent route, the patentee shall pay the annual fee for the unitary patent to the EPO from the year following the publication of the grant of the patent in the European Patent Gazette. At present, the annual fee amount of a single patent adopts the True Top 4 model, that is, the annual fee of a single patent is equivalent to the sum of the annual fees of the four most frequently registered countries in the member states.
Taking Germany, France, the United Kingdom and the Netherlands as the top four most frequently registered countries as examples, the total annual fee for the first ten years of the unitary patent will be less than 5,000 euros, and the cumulative annual fee paid to maintain the patent during the 20-year maintenance period The total will be around 35,500 euros.
Compared with the annual fee of the traditional individual designation effective, if the 25 member states are registered separately and the annual fee is paid separately, the total amount of the annual fee payable in the first ten years is about 29,500 euros, while the total accumulated annual fee for the entire 20 years It is close to 159,000 euros.
Therefore, in the case of registrations in all 25 member states, the annual fee for a unitary patent will be much lower than the sum of the annual fees for separate registrations under the traditional designation effective mode.
However, it should be noted that the unitary patent is an "all-in or all-out" method, which is different from the traditional European designated effective mode, and the patentee will not be able to selectively waive the annual fee of a certain country in each country , In other words, for the patents of a single patent, either these countries must pay all of them or give them all up. This approach may increase the maintenance cost for the patentee.
6.2 Payment method of annual fee
The annual fee payment method for a unitary patent has been greatly simplified. Compared with the traditional European designation effective method, the patentee only needs to pay the EPO in a single currency, the euro, and no longer needs to pay to multiple different The patent office pays annual fees of different amounts at different times. The amount, currency, and payment time limit of the annual fee have been unified, which is very convenient for the patentee to maintain and manage.
7. Two interim measures
Currently, the EPO has introduced two provisional measures applicable to European patent applications that are currently in the final stages of the grant procedure:
7.1 Advance request for single effect
Under this transitional measure, applicants can request unitary effect in advance before the unitary patent system comes into operation. During this period, if the applicant receives a letter of granted issued by the EPO, he can request a single effect in advance. On the premise that the prescribed registration is met, the EPO will register the unitary patent after the start of the unitary patent system and inform the requester of the date of registration. Conversely, if the registration requirements are not met, the EPO will issue a correction notice or reject the request.
It should be noted that an advance request for unitary effect can only be lodged before the start of the Unified Patent System. The applicant will receive the result of the advance request within a few days of the publication of the grant in the European Patent Bulletin at the earliest after the entry into force of the unitary patent system. If the advance request is deficient in form, the EPO will notify the requester before the UPR becomes effective so that the requester can make corrections in a timely manner. If the advance request for single effect is filed before Germany deposits the UPCA Approval Letter or before the EPO issues a notification of granted, the request is considered not to have been made. Applicants will be notified of a Deemed Not Filed and informed that they can resubmit their request once the conditions have been met.
7.2 Request for delayed granted
After the EPO has issued a grant notification, the applicant can request a delay in publishing the grant announcement to avoid the applicant losing the opportunity to obtain unitary patent protection.
From the date of Germany's deposit of the European Unitary Patent Approval, the applicant can submit a request to the EPO for a delay in granting. It should be noted that a request for deferred grant can only be submitted for a European patent application that has received a notification of grant but has not yet been granted a patent right; and, the request for deferred grant can only be submitted before the implementation of the unitary patent system.
Summarize
The implementation of the European Unitary Patent will have a great impact on applicants' patent protection strategies in Europe. Whether to designate separately to take effect or to apply for a single patent will become a choice that applicants must face when their patent application is granted. Specific case conditions, actual needs, maintenance costs, risks, and benefits will make applicants more in need of professional agencies, representatives, and lawyers to provide opinions and suggestions.
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