The term « unitary » is misleading: the Unitary Patent does not cover the entire Union, nor does it have a fixed territorial scope once and for all. Two concepts must be distinguished: the participating States in the enhanced cooperation, and—more narrowly—the States where the title actually takes effect (those having ratified the UPC Agreement). Furthermore, this coverage also depends on the registration date, giving rise to the concept of « generations. »
How many States does the Unitary Patent cover? The answer requires juggling several lists—and resisting the temptation to say « all of Europe. »
Enhanced cooperation: twenty-five States
The Unitary Patent is based on enhanced cooperation (Article 20 of the Treaty on European Union) involving twenty-five Member States: all EU States except Spain and Croatia (see the table on the Legal Framework page and Regulation 1257/2012). Spain challenged the system before the Court of Justice—unsuccessfully—primarily on linguistic grounds.
Participation is not enough: ratification is required
Participating in enhanced cooperation is not sufficient to be effectively covered. A Unitary Patent only takes effect in States that have ratified the UPC Agreement. Poland, for example, participates in the regulation but has never signed the agreement: no Unitary Patent therefore takes effect there.
As of September 1, 2024, eighteen States had ratified the agreement (Romania being the most recent). The up-to-date list—which is expected to grow as further ratifications occur—is maintained by the Court itself: see UPC Member States. This evolution creates generations of Unitary Patents with differing coverage.
What about the rest of Europe?
EPC Contracting States that are not EU members (United Kingdom, Switzerland, Turkey, Norway, Iceland, etc.) will never be covered by a Unitary Patent: for these territories, national validation of the European patent must continue (see The relationship with the classic European patent). The United Kingdom, which had ratified the agreement in 2018 before withdrawing following Brexit, is the most notable example.
This is one of the most counterintuitive subtleties of the system: two Unitary Patents granted just months apart may not cover the same countries.
Coverage fixed on the registration date
The territorial coverage of a Unitary Patent is determined once and for all on the date of registration of the unitary effect: it corresponds to the States that have ratified the UPC Agreement on that date (Article 18(2) of Regulation 1257/2012).
And this coverage never changes. If ten new States ratify the agreement next year, your Unitary Patent registered today will not extend to them: it will remain fixed to its original scope for its entire lifetime.
Hence the « generations »
This is why we refer to generations of Unitary Patents:
- titles registered at the system’s launch (June 1, 2023) cover seventeen States;
- those registered after Romania’s accession (September 1, 2024) cover eighteen;
- and so on, with a new « generation » emerging with each additional ratification.
Practical consequences
Within the same portfolio, two Unitary Patents may therefore follow two different territorial scopes—a management challenge not to be underestimated. Moreover, for territories not (yet) covered, there is no mechanism for subsequent extension: the only solution remains classic national validation, to be decided at the time of grant. In other words, it is best to plan ahead.