A unitary patent – properly called “a European patent with unitary effect” – is a new type of patent which is being introduced in Europe for EU member states.
It will differ from a “classical” European patent in that a unitary patent will be a single legal instrument, validinparticipating EU member countries which cannot be split into national components, meaning that all decisions and transactions on a unitary patent (amendment, validation, revocation, transfer, etc) can only occur simultaneously for all the relevant countries. A classical European patent, by contrast, is in effect a bundle of national patents: each national component of the European patent is a separate entity which may be handled separately on an individual national basis.
After introduction of the unitary patent a total of three different types of patent protection will be available to applicants in Europe: national patents obtainable from national patent offices, European patents and unitary patents. Applicants will have to consider which instrument or combination of instruments according to their commercial and legal requirements.
A unitary patent will be subject to the same substantive requirements (novelty, clarity, inventive step, etc) as a classical European patent, as defined by the European Patent Convention, and will have the same format. The European Patent Office (EPO) will be responsible for examination and grant of the unitary patent, as well as its post-grant administration, such as the payment of annual renewal fees.
The examination procedure for a unitary patent, being just a sub-species of European patent, will be exactly the same as for current European patents, except that the applicant will have to notify the EPO (within a month of grant) that the protection it is seeking is a unitary European patent, rather than a European patent.
As the unitary patent has no national component, disputes cannot be handled by national courts, so the new Unified Patent Court will have exclusive jurisdiction in the case of disputes related to the unitary European patent. The new Unified Patent Court will also have jurisdiction over existing European patents unless the owners have opted out of the new system under the transitional arrangements.