2. The Unitary Patent

2.1    Application Procedure

The Unitary Patent system uses the application procedure before the EPO. Thereby the building of a complete new procurement authority was avoided. Instead, it was possible to revert to the proven competence of the EPO.

The whole application and examination procedure before the EPO remains unchanged. The applicant for a European patent may apply for it having unitary effect within one month after the mention of the grant is published in the European Patent Bulletin.  In this case it becomes retroactively unitary effect within all participating member states as of the date of its grant (art. 4 par. 1 Unitary Patent Regulation).

2.2    The Languages Regime

The languages regime of the EPO principally applies:

A patent application may be filed in English, French or German. Furthermore, a patent application may also be submitted in any other language to the EPO; in such a case a translation into English, French or German has to be filed within two months.

The official language of the EPO in which the application was submitted or into which the application was translated, is the language of the procedure before the EPO. European patent specifications are published in the language of the procedure and contain a translation of the patent claims into the two other official languages of the EPO (art. 14 par. 6 EPC). In principle this also applies to Unitary Patents.

A validation of a Unitary Patent will not be necessary and therefore also any translation requirements with regard to validation will fall away. However, within the transitional period of art. 6 Translation Regulation

  • Unitary Patents granted in French or German have to be translated completely (that is not only with regard to the patent claims) into the English language and
  • if the Unitary Patent was granted in the English language, a complete translation of the patent specification into any other official language of the European Union has to be submitted (art. 6 par. 1 Translation Regulation).

The transitional period of art. 6 Translation Regulation ends no earlier than six and no later than twelve years after the date of application of the Translation Regulation. Whether this transitional period already ends before the above-mentioned twelve years have elapsed, depends on whether or not high quality machine translations of patent applications and patent specifications into all official languages of the European Union are then available (art. 6 par. 3 Translation Regulation). Such machine translations from English into German are already offered by the EPO on its Internet homepage.

Once the transitional period has elapsed, an application in one of the three official languages of the EPO (English, French or German) with a translation of the patent claims into the respective two other official languages only will be sufficient.

However, there is an exception in case of litigation: In the event of a dispute relating to an alleged infringement of a Unitary Patent the patent proprietor shall provide at the request of the alleged infringer a full translation of the patent specification into the official language of the member state in which the alleged patent infringement has taken place or in which the alleged infringer is domiciled. Also the court may request a complete translation of the patent specification into the language of the court proceedings. In both cases the costs for translations are to be borne by the patent owner (art. 4 par. 3 Translation Regulation).

2.3    The Unitary Effect

The Unitary Patent provides uniform protection and has equal effect in all the participating member states.

It may only be licensed, transferred, revoked or lapsed in respect of all the participating member states. However, it may be licensed in respect of the whole or also only a part of the territories of the participating member states (art. 3 par. 2 Unitary Patent Regulation).

The substantive provisions regarding the effect of the Unitary Patent are surprisingly not provided for in the Unitary Patent Regulation. This has the background that the United Kingdom suggested to delete entirely the provisions of art. 6 through 8 of the former draft regulation which dealt with the substantive effects of the Unitary Patent. The United Kingdom feared that otherwise the Court of Justice of the European Union would have to rule on substantive patent law which might have overburdened the court. However, the complete elimination of any substantive law provisions in the Unitary Patent Regulation could have made it questionable whether this regulation may be based on art. 118 of the Treaty on the Functioning of the European Union (TFEU).

As a compromise, art. 5 Unitary Patent Regulation now provides that the Unitary Patent confers on its proprietor the right to prevent any third party from committing acts against which that patent provides protection. What acts these are maybe concluded from the AUPC: Art. 25 and 26 AUPC prohibit direct and indirect patent infringement. Art. 27 AUPC provides limitations thereof such as, e.g., acts done privately or for experimental purposes. Art. 28 AUPC provides for a right on prior use of the invention. From the perspective of the law maker, all of this has the character of national law and therefore is not subject to control by the Court of Justice of the European Union.

The Unitary Patent therefore provides some specialties from the perspective of the law of the European Union: The Unitary Patent is granted by the EPO which is no organization of the European Union. Decisions of the procurement and opposition proceedings cannot be reviewed by European courts; legal protection is only granted within the EPO by its Boards of Appeal. And finally, the substantive effect of the Unitary Patent is not provided for by a regulation of the European Union, but rather - this is the conception of the law maker - on the level of the national law, and therefore is also beyond the reach of control by the Court of Justice of the European Union.