With a bit of careful planning – yes.
After implementation of the reforms the different types of patents available will be the following
- National patents, examined and granted by national patent offices
- European patents, examined and granted by the EPO and valid in states chosen by the owner, and equivalent to a bundle of national patent rights in each of those states
- Unitary patents, also granted by the EPO, being a single multinational patent right valid in participating EU states
It will be possible to combine these different types of patent protection. For example it will be possible to have a unitary patent in the relevant EU states and, in parallel, a classical European patent in a number of non-EU states, all possible via the centralised application procedure at the EPO, as illustrated.
Some applicants may seek to ensure that “parts” of their patent never come with the UPC jurisdiction, by applying for national patents instead of or as well as unitary/European patent, which may be allowable as long as rules on double patenting are respected. The “extra” coverage may incur extra costs.
Observers have also speculated on more extreme strategies, perhaps where an invention is considered to be particularly valuable, in which applicants seek a “second” patent protection to stand alongside a unitary patent and serve as a sort of back-up to it, either by applying for a divisional application on a similar (but not identical) scope at the EPO or by (a) completely separate application(s) at national offices, again making sure that the double patenting rules are not broken. Such strategies do not make the most of the cost benefits of the centralised application procedure and may come with an expensive price tag.