The unitary patent is an intellectual property title which, unlike the European patent, is part of the legal framework of the European Union.
Indeed, in order to create the “unitary patent”, the European Union has set up enhanced cooperation.
"Enhanced cooperation" is a European procedure, provided for by the Amsterdam Treaty of 1997, allowing the union to promulgate Directives or Regulations which do not apply to all member states, but only to states which wish to do so.
This "cooperation" is useful especially in cases where unanimity is difficult to obtain (which is the case in the area of unitary patents, since Spain and Italy historically refused this system).
Thus, within the framework of this cooperation, the Union has adopted two regulations:
- Regulation n ° 1257/2012 : Implementation of enhanced cooperation in the area of creating unitary protection.
- Regulation No. 1260/2012 : Translation within the framework of the unitary patent.
These regulations entered into force on January 20, 2013 but will only apply when the agreement on unified jurisdiction is implemented (Article 18, Regulation n ° 1257/2012).
European agreement or international treaty
It should be noted that the agreement concerning the JUB is part of enhanced cooperation and, as such, is not a legal tool which is de facto part of the legal order of the Union (such as a regulation or directive to another extent).
More precisely, it is necessary that the member states participating in this enhanced cooperation ratify this agreement, like any international treaty.
Of course, the means of ratification can depend on each member state.
Participating Member States
|Member countries||Participation in cooperation||Ratification date|
|Poland||x||(will not sign)|
|Czech Republic||x||(will not sign)|
In order to fully understand the unitary patent, a large number of standards must be applied:
- the rules of European law (and in particular the regulation 1257/2012 concerning the unitary patent);
- theJUB agreement
- the EPC
- patentability rules
- national laws (the competence of which can be given by the rules of private international law or by the rules concerning unitary effect)
- patent ownership (eg invention of employees)
- rules regarding compliance with IP titles (eg compulsory licenses, prior use, etc.)
- private international law
- the rules of procedure of the JUB.