Unitary patent

The European patent with unitary effect, also known as the unitary patent, is a European patent which benefits from unitary effect in the participating member states of the European Union. Unitary effect means the patent has a common legal status throughout all the participating states, eliminating scenarios in which a patent may be invalidated by courts in one participating member state yet upheld by courts in another. Unitary effect may be requested by the proprietor within one month of grant of a European patent, replacing validation of the European patent in the individual countries concerned. Infringement and revocation proceedings are conducted before the Unified Patent Court (UPC), which decisions have a uniform effect for the unitary patent in the participating member states as a whole rather than in each country individually. The unitary patent may be only limited, transferred or revoked, or lapse, in respect of all the participating Member States. Licensing is however possible for part of the unitary territory. The unitary patent may coexist with nationally enforceable patents ("classical" patents) in the non-participating states. The unitary patent's stated aims are to make access to the patent system "easier, less costly and legally secure within the European Union" and "the creation of uniform patent protection throughout the Union".

European patents are granted in English, French, or German and the unitary effect will not require further translations after a transition period. The maintenance fees of the unitary patents are lower than the sum of the renewal fees for national patents of the corresponding area, being equivalent to the combined maintenance fees of Germany, France, the UK and the Netherlands (although the UK is no longer participating following Brexit).

The negotiations which resulted in the unitary patent can be traced back to various initiatives dating to the 1970s. At different times, the project, or very similar projects, have been referred to as the "European Union patent" (the name used in the EU treaties, which serve as the legal basis for EU competency), "EU patent", "Community patent", "European Community Patent", "EC patent" and "COMPAT".

On 17 December 2012, agreement was reached between the European Council and European Parliament on the two EU regulations that made the unitary patent possible through enhanced cooperation at EU level. The legality of the two regulations was challenged by Spain and Italy, but all their claims were rejected by the European Court of Justice. Italy subsequently joined the unitary patent regulation in September 2015, so that all EU member states except Spain and Croatia now participate in the enhanced cooperation for a unitary patent. Unitary effect of newly granted European patents will be available from the date when the related Unified Patent Court Agreement enters into force for those EU countries that have also ratified the UPC, and will extend to those participating member states for which the UPC Agreement enters into force at the time of registration of the unitary patent. Previously granted unitary patents will not automatically get their unitary effect extended to the territory of participating states which ratify the UPC agreement at a later date.

The unitary patent system applies since 1 June 2023, the date of entry into force of the UPC Agreement.

In 2009, three draft documents were published regarding a community patent: a European patent in which the European Community was designated:

Based on those documents, the European Council requested on 6 July 2009 an opinion from the Court of Justice of the European Union, regarding the compatibility of the envisioned Agreement with EU law: "'Is the envisaged agreement creating a Unified Patent Litigation System (currently named European and Community Patents Court) compatible with the provisions of the Treaty establishing the European Community?’"

In December 2010, the use of the enhanced co-operation procedure, under which Articles 326–334 of the Treaty on the Functioning of the European Union provides that a group of member states of the European Union can choose to co-operate on a specific topic, was proposed by twelve Member States to set up a unitary patent applicable in all participating European Union Member States. The use of this procedure had only been used once in the past, for harmonising rules regarding the applicable law in divorce across several EU Member States.