Choosing between Unitary Patent and national validation can be like choosing between a set menu and à la carte options.
It’s September, and if you’ve been dining out in Europe over the summer, you may have faced the choice between a set menu and ordering à la carte. There’s a similar decision to make once a European patent is granted. Validation — the process of turning that patent into enforceable rights in the countries where you actually want protection — has come in two distinct flavours since the introduction of the Unitary Patent. So, with the holiday spirit still lingering, let’s take a tour through your options.
What Is European Patent Validation and How Has It Changed?
A European patent granted by the European Patent Office (EPO) isn’t automatically enforceable everywhere in Europe. You need to decide in which countries to bring the patent into force. That decision-making process is validation, and it must generally be completed soon after grant.
Historically, validation could only be done individually. But, since June 2023, applicants have had a second option – the Unitary Patent – which covers a bloc of participating EU member states in one go.
The Set Menu: How Does Unitary Patent Validation Work?
The Unitary Patent is akin to a generous set menu, like a great prix fixe at a smart Parisian bistro. There is one price, one order, with a good spread of dishes without you having to decide on each course.
A single request soon after grant and a single annual renewal fee secure protection across participating EU member states. So you can have the French onion soup, an Italian carbonara, German bratwurst, Austrian spätzle, Dutch stroopwafel, and more – because they’re all on the set menu. A full list of countries is here. For businesses wanting broad European coverage without the administrative overhead of multiple national validations, the menù fisso of the Unitary Patent is often the simpler and more cost-effective validation route – particularly where broad protection in the EU is required.
Fancy a Supplement? Extending Your Unitary Patent Validation
Of course, even the best set menu sometimes needs a supplement – perhaps an extra course, or a cheeseboard that isn’t included as standard. The same is true of the Unitary Patent. It currently only covers EU member states that have ratified the relevant agreement, which means that Spain isn’t on this particular menú del día – along with the UK, Switzerland, Poland, Ireland, and others.
It is often necessary to add separate national validations alongside your Unitary Patent, rather like ordering a supplement to your set menu because the Spanish tortilla or the Swiss fondue is unmissable.
Therefore, many applicants end up with a hybrid approach: a Unitary Patent as the core order, topped up with individual validations in important, non-Unitary territories.
The À La Carte Route: Traditional Validation in Individual Territories
But if you know exactly what you want for each course, you dine à la carte. Traditional national validation works on this principle. You choose in which specific countries of the 40 member states of the European Patent Office to validate. Each is handled as its own separate national process, having its own renewal fees and, possibly, translation requirements.
This approach suits businesses with focused, specific territorial needs – perhaps those that will only ever manufacture, sell, or face competitors in three or four key countries. Individual validation can work out more cost-effective, both in the short term and the long term.
It also provides the option of opting out of the Unified Patent Court, thereby avoiding the risk of your European patent being knocked out across the Unitary Patent countries in one go at this forum. If the patent has questionable inventiveness, and you have competitors who may attempt invalidation, avoiding the Unified Patent Court could make it harder to have the patent revoked across Europe.
Which European Patent Validation Option Should You Choose?
Choosing between the Unitary Patent, traditional validation, and a hybrid approach depends on commercial factors. There’s not one right or wrong approach, but you might consider the following:
- Review the list of Unitary Patent territories. If protection will be required in four or more of those, the Unitary Patent will normally be the right decision. Add traditional validation in the UK, Spain, Switzerland, etc., if desired, to create a hybrid approach.
- If you do not require four or more Unitary Patent territories, but you will require Italy, then the Unitary Patent might still be the best option (at least in the short term), since the initial Italian national validation can be expensive due to the necessary translation. Although, in the long term, Unitary Patent validation may be more expensive due to higher renewal fees – so this is a balanced decision.
- Otherwise, picking the traditional validation in individual territories will probably be most cost-effective, and will bring the option of opting out of the jurisdiction of the Unified Patent Court.
Summary
Whether you’re drawn to the convenience of the set menu, the precision of ordering à la carte, or a combination of both, the key is making an informed validation choice. As with any good meal, a little planning goes a long way.
If you’d like advice tailored to your own patent portfolio, call us on +44 (0) 1242 691 801 or use the form below and we will be happy to advise and guide you.
Bon appétit – and welcome back from the holidays.
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