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.
« Enhanced cooperation » is a European procedure, provided for by the Treaty of Amsterdam 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 (as 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:
- Regulation No 1257/2012: Implementing enhanced cooperation in the area of the creation of unitary patent protection.
- Regulation No 1260/2012: Translation arrangements for the unitary patent.
These regulations entered into force on 20 January 2013 but will only apply upon the entry into force of the Agreement on a Unified Patent Court (Article 18, 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 (as a regulation or directive would in another context).
More precisely, it is necessary for the participating Member States in this enhanced cooperation to ratify this agreement, as with any international treaty.
Of course, the ratification procedures 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 number of legal instruments must be applied:
- European law (in particular Regulation 1257/2012 on 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)
- patentability rules
- ownership of the patent (e.g., employee inventions)
- rules on the enforcement of IP rights (e.g., compulsory licenses, prior use, etc.)