The unitary patent is an intellectual property title which, unlike the European patent, operates within the legal framework of the European Union.

Enhanced Cooperation

Indeed, to create the « unitary patent, » the European Union established enhanced cooperation.

The « enhanced cooperation » is a European procedure, provided for by the Amsterdam Treaty of 1997, allowing the Union to adopt directives or regulations that do not apply to all Member States, but only to those that wish to participate.

This « cooperation » is particularly useful in cases where unanimity is difficult to achieve (which is the case in the field of unitary patents, since Spain and Italy historically opposed this system).

Under this cooperation, the Union adopted two regulations:

These regulations entered into force on 20 January 2013 and have been applicable since 1 June 2023, the date of entry into force of the Agreement on the Unified Patent Court (Article 18 of Regulation No 1257/2012).

European Agreement or International Treaty

It should be noted that the Agreement on the UPC is part of enhanced cooperation and, as such, is not a legal instrument that automatically forms part of the Union’s legal order (unlike a regulation or directive, to a different extent).

More precisely, it is necessary for the participating Member States in this enhanced cooperation to ratify this agreement, as with any international treaty.

Naturally, the means of ratification may vary depending on each Member State.

Participating Member States

Member States Participation in cooperation Ratification date
Germany x
Austria x 06/08/2013
Belgium x 06/06/2014
Bulgaria x 03/06/2016
Cyprus x
Croatia
Denmark x 20/06/2014
Spain
Estonia x 01/08/2017
Finland x 19/01/2016
France x 14/03/2014
Greece x
Hungary x
Ireland x
Italy x 10/02/2017
Latvia x 11/01/2018
Lithuania x 24/08/2017
Luxembourg x 22/05/2015
Malta x 09/12/2014
Netherlands x 14/09/2016
Poland x (will not sign)
Portugal x 28/08/2015
Romania x
United Kingdom x 26/04/2018
Slovakia x
Slovenia x
Sweden x 05/06/2014
Czech Republic x (will not sign)

Applicable Laws

To fully understand the unitary patent, a large number of legal provisions must be applied:

  • the rules of European law (in particular Regulation 1257/2012 concerning the unitary patent);
  • the Agreement on the UPC: direct infringement (Article 25 of the Agreement on the UPC),
  • indirect infringement (Article 26 of the Agreement on the UPC), limitation (Article 27 of the Agreement on the UPC), prior use (Article 28 of the Agreement on the UPC), exhaustion of rights (Article 29 of the Agreement on the UPC), the EPC, patentability rules, national laws (whose jurisdiction may be conferred by private international law rules or by rules concerning the unitary effect), ownership of the patent (e.g., employee inventions), rules concerning the enforcement of IP rights (e.g., compulsory licenses, prior use, etc.), private international law,
  • the Rules of Procedure of the UPC.

This table reflects participation in enhanced cooperation. However, the actual coverage of a unitary patent depends on the ratifications of the Agreement on the Unified Patent Court: as of 1 September 2024, eighteen States had ratified it. The United Kingdom, which had ratified it in 2018, withdrew following Brexit. Updated list: UPC Member States. See also The territorial scope of the unitary patent.