So far, the European patent has not constituted a unitary protective right, but could create a bundle of national patents through validation in selected countries belonging to the Convention on the Grant of European Patents (ECP).
Once the European Patent Office (EPO) publishes information on the granting of a European patent, the holder is required to file an application for recognition of the validity of the patent in the patent offices of the countries in which the patent is to be valid within 3 months of the date of publication. The requirements and practice regarding the validation procedure in individual countries vary, but failure to complete this procedure within the specified deadlines may result in the lack of protection for the invention in the territory of a given country. Therefore, it is extremely important to prepare the application correctly.
According to Polish law (Article 89, section 1, item 3 of the Industrial Property Law Act), a patent may be invalidated in whole or in part at the request of anyone who proves that the patent was granted for an invention not covered by the content of the application or the original application. This provision has its legal equivalents in other countries. Therefore, in order not to expose oneself to the risk of losing the patent and the costs of the proceedings, it is also extremely important that the translation of the application is prepared at the highest level.
Our law firm offers European patent validation services by a specialized team. Patent attorneys and translators specialized in a given field of technology work on the preparation of each validation document. We provide our clients with a comprehensive and professional service covering all activities related to validation in Poland and abroad, thanks to cooperation with foreign law firms.
The final steps are currently being taken to access the unitary patent, which will enable protection in up to 25 countries by filing a single application with the EPO, which will greatly simplify the procedure and the costs associated with validations. The system will most likely be launched at the end of 2022 or in January 2023. This will happen on the first day of the fourth month after Germany deposits its instrument of ratification of the UPC agreement (UPCA).
In order to ensure a smooth transition between the validation system and the unitary patent system, the EPO will implement transitional measures that will operate for 7 years. Even before the ratification of the UPCA, it will be possible to file applications for the registration of a unitary patent. This path will be possible for European applications that have received a communication under Rule 71(3) of the European Patent Convention (intents to grand). In the case of earlier applications, it will be possible to request a delay in issuing a decision on the grant of a European patent after receiving a communication under Rule 71(3) of the EPC and before the approval of the text intended for grant. This will allow earlier applications whose procedure would have ended during the transitional phase of the unitary patent system to benefit from the unitary patent protection.
At present, 17 Member States have already ratified the Agreement and will participate in the Unitary Patent at its launch, namely:
Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Slovenia, Sweden.
The UPC system will not include non-EU countries, such as Great Britain or Switzerland, nor will EU countries that are not interested in joining the system, such as Poland and Spain. In these countries, the current legalisation regulations (patent validation) will continue to apply.
Read more: Unified Patent Court
Read more: Fees for the Unified Patent
