The Unitary Patent: The unitary effect, its construction, legal nature and conditions of obtaining.

(A)  The construction of the unitary effect:

As Professors Jean Christophe Galloux and Bertrand Warusfel explain in their article  “The Unitary Patent and the future Unified Jurisdiction[1]”, the UP is a “unionist graft transplanted on the European patent”. The legal mechanism is in fact quite simple: the Convention on the European Patent governs the acquisition of the European patent until it is delivered. The European regulations adopted on 17^th December 2012 and published on 31^st December 2012 then govern the unitary patent.

Regulation 1257/2012 describes and explains the unitary protection and unitary effect in the following words[2]:

“Unitary patent protection should be achieved by attributing unitary effect to European patents in the post-grant phase by virtue of this Regulation and in respect of all the participating Member States. The main feature of a European patent with unitary effect should be its unitary character, i.e. providing uniform protection and having equal effect in all the participating Member States. Consequently, a European patent with unitary effect should only be limited, transferred or revoked, or lapse, in respect of all the participating Member States. It should be possible for a European patent with unitary effect to be licensed in respect of the whole or part of the territories of the participating Member States. To ensure the uniform substantive scope of protection conferred by unitary patent protection, only European patents that have been granted for all the participating Member States with the same set of claims should benefit from unitary effect.” (Emphasis added)

The temporary protection of the European patent is given to this patent until the publication of the European patent and the delivery of the unitary effect.

 

 

 (B) The legal nature of the unitary patent:

As explained in Regulation 1257/2012, the UP is not a new intellectual property title but a new legal attribute given to an already existing title, the European patent:

“The unitary effect attributed to a European patent should have an accessory nature and should be deemed not to have arisen to the extent that the basic European patent has been revoked or limited.[3]”

It is in fact not the result of a specific procedure of delivery and does not have a specific time limit. The condition of its annulation and its revocation moreover, derive entirely from the Convention on the European Patent and national laws, ant not from EU law.

The unitary effect delivered to a patent has hence « an accessory character [4]», i.e. the unitary effect can be extinguished without the European patent disappearing, and the European patent can be granted without the unitary effect.

 

 

(C) The conditions of obtaining the unitary effect:

The deliverance of the unitary effect necessitates three cumulative conditions:

The unitary effect must be asked by the patent owner within a month from the patent publication in the Bulletin Européen des brevets.

The unitary effect must be registered in a special register: the “register of patent protection by unitary patent”.

The European patent must offer the same protection for the different states participating to the Unitary Patent. Article 3.1 of regulation 1257/2012 in fact states: “A European patent granted with different sets of claims for different participating Member