Friday, 5 April 2013

On the coverage of the Unitary Patent

As many of you will know, Regulation (EU) No. 1257/2012 provides the basis for a patent proprietor to apply for unitary effect of a European Patent Application, thereby obtaining a "Unitary Patent".

Moreover, Art. 9.1(g) of the Regulation tells us that, in order to do so, the proprietor needs to file a request for the unitary effect of the European Patent at the EPO within one month of the date of publication of the mention of the grant in the European Patent Bulletin.

A question which may arise here is to which states the unitary effect extends. Does it extend to all so-called Participating Member States of the Regulation (i.e., all EU states except Spain and Italy)?

Art. 18(2) of the same regulation helps us in answering this question, in that it states that the unitary effect is only provided for a Participating Member State if the respective state has ratified the Agreement on the Unified Patent Court (the "Agreement"), thereby giving the Unified Patent Court exclusive jurisdisdiction with regards to European Patents with unitary effect.

Moreover, Art. 18(2) specifies a decisive date for determining the coverage, namely by specifying that the unitary effect is provided only in those states which have ratified the agreement at a time of registration of the unitary effect in the Register (which, according to A. 2(e) of the Regulation, is the register kept by the EPO under A. 127 EPC).

Ergo, although the list of Participating Member States is extensive, the reality as of 1 January 2014 (or 4 months after ratification of the Agreement by at least 13 States including FR, DE and UK, whichever date comes later) may look differently, namely it may be limited to only those states who have ratified the Agreement at that time.

So how quickly will the EPO will register the unitary effect in the register after receiving a request from the proprietor? This seems at least of some importance since EPO at least in part determines the decisive date and thus to some degree the coverage of the Unitary Patent.

Time will (hopefully) tell…

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