The unitary patent does not replace the classical European patent: it is a possible extension thereof. Upon grant, the proprietor chooses: unitary effect, national validations, or both. For reference, the grant itself falls under the EPC procedure (see also National validation and unitary effect).
Upon grant of the European patent, the proprietor has one month to decide on the next steps: request unitary effect, validate country by country, or combine both.
Unitary effect
A single title for the covered states, a single annual official fee, no national translations in the long term: it is simple and cost-effective when targeting several of these states. The trade-off: the exclusive jurisdiction of the UPC and the risk of central revocation.
National validations
Classical validation of the European patent remains essential for territories not covered by the unitary effect:
- EU states not covered (Spain, Croatia, or states that have not yet ratified, such as Poland or Ireland);
- EPC contracting states outside the EU: United Kingdom, Switzerland, Turkey, Norway…
It also retains strategic value: by remaining outside the unitary system (and, where applicable, exercising an opt-out), one avoids the risk of a single central revocation.
In practice: often both
The most common strategy thus combines a unitary effect for the core of the covered market and targeted national validations for the rest (typically the United Kingdom, Switzerland, Spain). The unitary patent is not a universal substitute: it is one more tool in the toolbox.
What happens to the European patent in a given state when unitary effect is requested? And can a national patent and a (European or unitary) patent covering the same invention coexist? Two coexistence issues that must be carefully distinguished.
No double effect of the European patent
Where the unitary patent takes effect, the European patent from which it derives is deemed not to have taken effect as a national patent (Article 4(2) of Regulation 1257/2012). In other words, in the same state, the unitary effect and a national validation of the same European patent cannot be combined: this would result in double protection. The unitary choice thus « consumes » the national validation in the covered countries.
National patent and European patent: it depends on the states
The coexistence of a national patent and a European patent (with or without unitary effect) covering the same invention is governed by the law of each state (Article 139(3) of the EPC).
Solutions vary from country to country: some prohibit the combination (the national patent ceases to have effect to the extent it protects the same invention), while others allow it. France, for example, has evolved its position to permit a form of coexistence. It is therefore necessary to verify, state by state, the applicable rule: the unitary patent has not erased these national particularities.