In Europe, inventors will soon need to decide whether to receive a single unitary patent or obtain individual country-specific patents in Europe by selecting specific countries for validation when a new patent is granted.
The main downsides to the new unitary patent are that 1) if a UP is found invalid, the Applicant loses patent rights in all countries rather than only in the country in which the patent is asserted; and 2) the cost for validating the unitary patent is higher than validating in only one or two countries (approximately four times the cost to validate in the average country).
In contrast, using the unitary patent system provides a lower-cost option for broad patent coverage in Europe. The unitary patent system also simplifies the process of recording patent assignments, for example, when a company is acquired or during a corporate restructure. Rather than recording assignments in each validation country, the assignments need only be recorded in a single place.
Early-stage and high-growth companies should strongly consider requesting a unitary patent for new patents being granted on or after June 1, 2023 (predicted). In our experience, early-stage and high-growth companies are less likely to engage in expensive and lengthy litigation processes in Europe, instead favoring lower-cost out-of-court negotiations to settle disputes when possible. Because the companies are less likely to litigate in Europe, the risk of losing a patent in all of Europe rather than in only a single country is less of a factor. Further, in developing markets, it is often challenging to predict which countries are best to validate, and the unitary patent enables broad European protection covering at least 17 countries, and likely growing over time.
