Beyond the rights it confers against infringers, the unitary patent is also an asset: it can be assigned, licensed, pledged, included in an estate, and transferred. However, it is essential to determine which law governs these transactions on a title that is, by nature, supranational.
The answer provided by Regulation 1257/2012 is ingenious: as an object of property, the unitary patent is treated as a national patent of a single Member State, but for the entire territory (Article 7). Everything follows from this.
The Applicable National Law
A single title covering eighteen states: which of these eighteen national laws governs its ownership? The Regulation resolves this with a single connecting rule. The unitary patent is assimilated, in its entirety and for the whole territory, to a national patent of the Member State in which, on the filing date of the European patent application, the applicant had (Article 7 of Regulation 1257/2012):
- its domicile or principal place of business;
- failing that, a place of business.
In the case of multiple applicants, these criteria are applied in the order of registration in the Register (Article 7, paragraph 2). And if the title cannot be connected to any state? German law applies, as Germany is the seat of the EPO (Article 7, paragraph 3). This fallback solution has at least the merit of being predictable.
A “Nationality” Fixed at the Filing Date
This connection is crystallized at the filing date: a subsequent relocation of the applicant, or an assignment to a company established elsewhere, does not change the applicable law. The “nationality” of the unitary patent is thus set in stone from the outset and will govern, for the entire territory, transfers, licenses, security interests, and enforcement measures.
Transfer: Only as a Whole
The unitary patent can only be transferred in respect of all participating Member States (Article 3, paragraph 2, of Regulation 1257/2012). It is therefore impossible to sell the title for France while retaining it for Germany: it is all or nothing.
Licenses: As a Whole or in Parts
Fortunately, the license escapes this rigidity: the unitary patent can be licensed for all or part of the territory (Article 3, paragraph 2). It is therefore possible to grant a license limited to certain countries—something that cannot be done for an assignment. In short, one can lease in parts what can only be sold as a whole.
License of Right: A Discount on Official Fees
The proprietor may file with the EPO a declaration of “license of right”: they undertake to grant a license to anyone, for appropriate remuneration (Article 8 of Regulation 1257/2012). In return, they benefit from a 15% reduction in the annual official fees. A way to monetize a degree of openness.
Security Interests and Enforcement Measures
The unitary patent can also be pledged or made the subject of real rights and enforcement measures: these operations are governed by the applicable national law (Article 7 of Regulation 1257/2012). Transfers, licenses, and security interests should ideally be recorded in the Register of Unitary Patent Protection maintained by the EPO to be enforceable against third parties.