European patents with unitary effect will be examined by the European Patent Office - just like conventional European patents today. The application and grant procedure will be the same. However, in the future patent owners will have the possibility to file a so-called request for unitary effect after grant.
The unitary effect will have to be requested at the European Patent Office within one month after grant. This option will be available for any European patent granted after the UPCA enters into force. A prerequisite for this will be that identical patent claims exist for all EU member states participating in the UPCA.
Parallel to the European patent with unitary effect, there will still be the possibility to validate conventional European patents. This will of course also be possible for EU member states which have not or not yet ratified the UPCA (e.g. Spain or Poland), as well as for states of the European Patent Convention which do not belong to the EU (e.g. Switzerland, Liechtenstein, the United Kingdom or Norway). In addition, national patents will continue to exist.
One advantage of the new European unitary patent will be that it can be obtained with a central application at the European Patent Office in all 17 EU member states currently participating in the UPCA (October 2022). Parallel validation procedures will no longer apply in these states. Moreover, after a transitional period of six years (which can be extended to a maximum of 12 years), translations will no longer be necessary. Moreover, for a European patent with unitary effect, only one annual fee will have to be paid directly to the European Patent Office, which will also be responsible for maintaining the register, for example in the event of a change of ownership. The complexity of validation and maintenance will thus be significantly simplified.
Another advantage of the new unitary patent will be the costs. It is expected that the unitary patent will be less costly than a conventional European patent if it is validated in three to four or more participating EU member states. With validation in a larger number of states (in future up to 24), the cost savings over the entire term of the patent can potentially be significant.
One disadvantage of the new system is that important European production sites or sales markets do not participate. Examples of this include Switzerland, the United Kingdom, Spain and Poland. Furthermore, rights from a European unitary patent will have to be enforced or defended before the new Unified Patent Court, for which there is as yet no practical experience. Especially with regard to the possibility of an invalidity action, which in case of success may lead to a central revocation of the patent in all participating EU member states, there is thus some uncertainty for owners of European unitary patents.