A Unitary Patent can be applied for through EPO, as the current European Patent (EP). Within one month of the grant of an EP patent by EPO, the applicant can file a request for unitary protection. If the granted patent meets the additional requirements, the patent shall be granted with the same set of claims for all contracting states and the applicant will get the same patent protection across all the UPC Agreement contracting states. As EPO shall handle the application and grant procedures in accordance with the European Patent Convention (EPC), the current standards of patent searches and patent examinations will be continued. The UPC Agreement does currently not allow for the grant of unitary protection to supplementary protection certificates (SPCs), but the European Commission has initiated a public hearing as to whether SPCs should be made subject to unitary protection in the future.
The new UP will, as the name implies, have a unitary effect across the contracting states, meaning (i) equal strength and protection for the patent, (ii) that any transfer or limitation action will apply across all contracting states, and (iii) that enforcement of a patent in a court will apply to the patent protection across all contracting states. The previous system of EPs covered up to 38 countries, as opposed to the 25 countries that are parties to the UPC Agreement.
However, the unitary patent system is not without inherent risk for the rightsholder. Firstly, any revocation or invalidity in one contracting state will apply across all contracting states. Consequently, one successful lawsuit from a competitor in one country can invalidate the entire protection if a unitary patent is the only patent protection. Secondly, the introduction of the UP can lead to an increase in the total number of patents in the market, possibly making it harder to navigate without opening yourself up for infringement actions in countries you do not have a strong presence. Lastly, in relation to the previous point, increased surveillance of the market before entering and ongoing monitoring of competitors in the market is recommended. The new and broader jurisdiction which can be the basis for infringements can open new avenues for competitors to take action, resulting in the loss of valuable patent protection in other countries.