Friday, 18 April 2014

Country overview of the unitary patent system

Not all European countries are equal with respect to the unitary patent. This is one of the more confusing aspects of the unitary patent. Below is an overview of the all European countries and how they fit in the unitary patent system.


I'll limit myself to European states that are either a EU member or have joined the EPC, either by being a full member or by being an extension state. Note that there are European states that are neither, e.g., Kosovo. You cannot get a patent via the EPO in Kosovo, and this won't change when the unitary patent is in effect.

EPC Extension states 

Bosnia and Herzegovina
Montenegro

These states are neither EU member nor EPC member, but they are so-called extension states. A patent granted by the EPO can be made valid for these states, if you requested this. When the unitary patent is in effect this option will still exist.

Unitary patents will not be valid in these states. No division of the UPC can be established, the UPC has no competence.

EPC member states, non-EU members

Albania
Iceland
Liechtenstein
Macedonia, The former Yugoslav Republic of
Monaco
Norway
San Marino
Serbia
Switserland
Turkey


These states are not member of the EU, so a unitary patents will not be valid in these states. No division of the UPC can be established, the UPC has no competence.

A patent granted by the EPO may be validated in anyone of these countries. This will remain possible in future, following the same procedure. For other countries either a unitary patent may be available or individual validation.


EPC member states, EU members, not participating in enhanced cooperation, no signature on agreement

Croatia 
Spain

These countries do not take part in the enhanced cooperation. This means that a unitary patent will not be valid in these countries. No division of the UPC can be established, the UPC has no competence. However, a patent granted by the EPO may still be validated in anyone of these countries.


In theory both Croatia and Spain could decide to join the enhanced cooperation and sign the agreement on the unified patent court. For Spain this is unlikely, as they have a law suit at the Court of Justice, trying to invalidate the enhanced cooperation. If Croatia joins, this may trigger the 'Croatia condition'. Should Croatia want to join, it would be best if it did so before the unitary patent system is in effect.



EPC member states, EU members, participating in enhanced cooperation, no signature on agreement

Poland

Although Poland did take part in the enhanced cooperation, they have not signed the agreement on the unified patent court. The unitary patent regulation require the UPC to be competent in a state, this effectively means that that a unitary patent will not be valid in Poland.No division of the UPC can be established, the UPC has no competence. A patent granted by the EPO may still be validated for Poland.

 

EPC member states, EU members, not participating in enhanced cooperation, signature on agreement


Italy

Italy does not take part in the enhanced cooperation. This means that a unitary patent will not be valid in Italy. A patent granted by the EPO may still be validated in Italy.



Italy did sign the agreement. Should Italy also ratify the agreement it can host a division of the UPC. That division will be competent for all European patents, both unitary or traditionally validated.

The Italian unified patent court will have a slightly smaller competence: Unitary patents cannot be infringed in Italy, so you cannot sue anyone for infringing a unitary patent in Italy. Competence could be based on the other criteria. For example, one could sue an Italian company before the Italian unified patent court based on infringement of a unitary patent outside Italy.


EPC member states, EU members, participating in enhanced cooperation, signature on agreement

Austria
Belgium
Bulgaria
Cyprus
Czech Republic
Denmark 

Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Latvia
Lithuania
Luxembourg
Malta
Netherlands
Portugal
Romania
Slovakia
Slovenia
Sweden
United Kingdom



Anyone of these states can ratify the Agreement. If sufficiently many of them have done so, the unitary system starts for the ratified countries.

A unitary patent will be valid in all the ratified states. A division of the UPC can be established, the UPC has competence.

Nevertheless, a patent granted by the EPO may  still be validated in anyone of these countries, instead of having a unitary patent. 

At this moment we know for sure that the following countries will be part of the unitary system; they have fully ratified or are required for the system to start
Austria
France
Germany
United Kingdom
 

I have collected these list from information of the EU, the EPO and the ratification progress. If you see an error please let me know.





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