How the Unitary Patent Changes the Calculus of Patenting in Europe

Unless you live in a total IP blackout zone, you’ve probably heard of unitary patents and the Unified Patent Court (UPC). Your friend in Europe in particular, since his January of this year, has been adamant about notifying you by mass emails daily (if not hourly) whether you want to know or not. I’m here. But most of what they tell you is that you miss the forest more than the trees.

Purpose of the patent

Let’s start from the beginning. Why would you file a patent, aside from what your client tells you? The only answer is a hedge against the future. The reason is that you and they have no way of knowing at the time of filing whether this will be the “next big thing” or just another “something”. ‘ or potential ‘earnings’. For any of these to be possible, you must first have a patent (years away), have a budget, and be ready to enforce it (thousands of dollars away). A patent application is therefore a hedge against these possibilities at some point in the future. To preserve the future “sit at the table” possibilities brought about by today’s innovators. This is the simple truth. The sweet spot for patent value is 10-15 years after first filing.

So how do you get from here to there with minimal cost? In a nutshell, it should be your filing strategy. Obviously there are more nuances and it depends on the technology, but in short it is or should be.

Calculus

So how do you hedge your patent filing space when you come out of the US? Well, file a US application or multiple applications. This “hedge” brings “patent pending” status to +/- 8 billion people worldwide for 12 months through the Paris Convention. Once the application is completed, the filing fee charged by the United States Patent and Trademark Office (USPTO) is approximately $2,000. cheap. Next, file a Patent Cooperation Treaty (PCT) application. With over 155 member states and her fee of around $3,500 to $5,000, the hedge of +/- 8 billion people will be extended for another 18 months. Again, cheap. So we spent 30 months on his 10-year journey to value. We spent less than $10,000 in fees on patent “hedging”. So?

Now, look around the world at the various centers of macro-level economic activity and population. Europe, China, India and South America. (Note: There are also Africa and Southeast Asia, but they contain other topics, papers, and strategies! Stay tuned….) Fortunately, China and India are a single country and are covered Applying there is cheap, given its growing population and economic activity. South America can be split up for what you want, but if you go to Brazil alone, you’ll get half of the continent’s total population and most of the concentrated economic activity. But what about Europe? There are a lot of people and a lot of economic activity. But what if the country stretches from Iceland to Turkey, from the Arctic to the Mediterranean Sea, each with their own borders, patent offices and courts?

this changes everything

Until the advent of unitary patents, there was only one option in Europe. We select individual country amalgams for potential protection and enforcement, some countries pay large upfront fees for translations, and endless legal fees for verification/registration/registration. Extend and continue to pay the hedge each year in hefty annuities (and endless legal fees). It’s a rich man’s game. The Unitary Patent changes everything.

As before, proceed to post-PCT Europe via the European Patent Office (EPO). If you make the right choices, such as using the EPO as your International Searching Authority (ISA) and getting good results in PCT Chapter II, the EPO can be processed very quickly and at very low cost. Then, at the time of the patent grant decision at the EPO, when completed or nearly completed, choose to use the unitary patent. With the Unitary Patent, you get instant rights in 17 countries (initially) at almost no cost. To make this choice, you submit your translation only once and do not need any “official fee”. end. Additionally, when it comes time to enforce, there is a single court, the UPC (starting June 1, 2023), to enforce your rights in the same 17 countries. No more cross-border crackdowns across Europe. oh. And the unitary patent annuity pays only to a single entity (EPO)! One reminder, one payment, one attorney’s fees! But here comes the biggest “surprise”. The total pension for the first seven years totals approximately €1,600. For US patents, his annuity is $5,700 for up to 7.5 years. Yes, almost three times the cost of a European unitary patent.

So what did our friends in Europe miss in the explosion of emails about Unitary Patents? Getting is as cheap as getting a single US patent! And it gets cheaper. Patents in Europe are no longer reserved for wealthy applicants. In fact, it is now so cheap that not filing in Europe amounts to patent fraud. Cover as many people and as much economic activity as possible, quickly and for less money. The benefits and influence will only increase as more countries join. Patenting in Europe with a Unitary Patent is a game changer. This grants rights at an unprecedented fraction of the cost, especially in the early stages. This choice and this filing is what everyone who comes out of the US has to do, with the exception of some big pharma, because it’s such a cheap hedge. All patent applications.

Image Source: Deposit Photo
Image ID: 68531067
Author: Ike Concept