UNITARY PATENTS – A NUMERICAL JOURNEY IN THE EUROPEAN PATENT LANDSCAPE

Last year saw major changes in the patent landscape in Europe. On June 1^st, 2023, the UPC Agreement came into force, which installed a new common court for the settlement of disputes relating to European patents (EP). The same date also marked the establishment of the European patent with unitary effect (“Unitary patent” or UP). A Unitary Patent is based on a European patent granted by the EPO according to the requirements set out in the European Patent Convention, but with a territorial scope currently encompassing the 17 EU Member States participating in enhanced co‑operation and having ratified the UPC Agreement. In a previous article (here), we initially surveyed the early popularity of UP registrations four months after it became an option, using primarily the EPO’s unitary patent dashboard (at https://www.epo.org/en/about-us/statistics/statistics-centre#/unitary-patent). In a follow-up article (here), we took a deeper look into the uptake of UP filings until December 2023.

In this article, we consider the UP registrations until March 2024 based on the publication code.  In practice, within one month after the date of publication and mention of the grant of a European patent, the patent proprietor may file, in writing, a “request for unitary effect”, accompanied by a translation of the European patent. When this request is granted and registered at the EPO, a European patent with unitary effect is obtained. In addition to the B1 code of all granted EP patents, a European patent for which unitary effect has been successfully registered is designated by a newly introduced C0 code. By querying databases for granted (B1) patents and determining whether a corresponding C0 designation is present or absent, a more detailed analysis can be made on UP filings based on additional fields such as territory and technology. 

Time

The quantity and proportion of Unitary patents were evaluated between June 2023 and March 2024, and the data is represented in Figure 1.

Figure 1. Granted EP (total number) and registered UP (total number and in % vs monthly granted EP) between June 2023 and March 2024

Between June and March 2024, on average, about 10,00 European patents have been granted and published each month, or about 99,500 granted European patents for the total 10-month period. In the same period, more than 24,000 UP have been registered, or about 24.5% of the granted EP. The proportion of registered UP peaked in June 2023, with unitary effect registered for about 37% of the granted EP. This can be explained by the decision of the EPO to allow applicants, from early 2023, to request a delay in the grant of their European patent until entry into force of the UPC Agreement, to obtain a Unitary patent. 

After the initial peak in June 2023, the proportion of UP dropped. As of November 2023, this proportion is now fairly constant at about 23.5% of the granted EP. On average, about 2,100 UPs/per month have been registered in the period between November 2023 and March 2024. 

Geography

The number of European patents with and without unitary effect granted between June 2023 and March 2024 were evaluated in view of the country/region of the patent holder. This is schematically represented in Figure 2.

Figure 2. Granted EP () and registered UP (right) in function of the country/region of the patent holder

The predominance of European patent holders (EU + United Kingdom) in requesting unitary effect is immediately visible. Between June 2023 and March 2024, applicants from Europe (EU + United Kingdom) accounted for almost 41,000 granted EPs, or about 41% of all granted EP, and for about 14,300 registered UP, or almost 60% of all registered UP. Unitary effect was registered for about 35% of the granted EP in the name of European holders, well above the overall average of 24.5% of unitary effect registration. After the initial peak in June 2023, the proportion of UP held by EU patent holders is now fairly constant at about 32%.

In contrast, patent holders of the United States, China, Japan and Korea are much less likely to request unitary effect. In particular, while United States applicants accounted for almost 25% of all granted EP, they only account for about 15% of all registered UP. Similarly, applicants from China, Japan and Korea (taken together) account for about 25% of all granted EPs, but only for about 12% of all registered UPs. Japanese applicants seem particularly reluctant to make use of the unitary patent system, with UP making up only about 7% of the granted EPs held by Japanese applicants. 

These differences in requesting unitary effect between the different regions may reflect a different familiarity with the new system and a different protection strategy. European applicants will generally be more knowledgeable of the unitary patent system, particularly in view of the extensive information campaign leading up to June 1^st, 2023. In addition, European applicants may favour broad patent protection in the unified EU market, which is their home market. Non-European applicants may focus instead on validation of a granted EP in only a few major European countries.

Technology

Based on their primary CPC classification code, the European patents granted between June 2023 and March 2024 were grouped in broad technology areas, represented by the CPC classification sections A-H.  The amount and proportion of Unitary patents were evaluated in each CPC classification section, as shown in Figure 3.

Figure 3. Granted EP (total number) and registered UP (total number and proportion (%) of EP) for technology areas, represented by CPC sections A-H

The majority of granted EP are classified in CPC sections A (“Human Necessities”), B (“Performing Operations, Transport”), G (“Physics”), and H (“Electricity”), followed by CPC sections C (“Chemistry; Metallurgy”) and F (“Mechanical engineering, Lighting, Heating, …”). CPC section E (”Fixed constructions”) and D (“Textiles, Paper”) contains the least amount of EP. The amount and proportion of UP clearly did not follow the same pattern, indicating that the technology area of the granted patent also influences whether or not unitary effect will be requested.

In CPC classification sections G and H, the proportion of UP amounted to about 19.5% and 16.5% of the granted EP, respectively, and is thus clearly below the average proportion of UP of about 24.5%. These CPC classifications generally encompass the technical fields of optics, computing, telecommunications, and electronic devices. Although these technologies represent a large market, this is not reflected in the proportion of UPs. These technology areas are dominated by large companies from China (Huawei) and US (Microsoft, Google, Intel, Qualcomm), which is in line with the limited number of registered UP for applicants from these regions. However, a relatively large proportion of UP in these fields are not only held by the European companies Siemens and Ericsson, but also by Korean company Samsung. Other patent strategy related factors, such as the risk of litigation, thus seem to determine whether or not unitary effect is desired.

In CPC classification sections A and E, the proportion of UP amounted to about 32.5% and 39%, respectively, and clearly exceeded the average UP of about 24%. CPC section A covers a broad range of technologies addressing basic human needs, such as food products and processing, cosmetics and medicinal products, which may benefit from the broad patent protection conferred by the EP with unitary effect. Considering the top patent holders in this category, this shows a mixed picture. Some companies only hold a limited number of UP (Covidien, Nike), while for other companies, such as l’Oréal and Ethicon, the UPs amount to more than 90% of the EPs granted between June and December 2023.

In CPC classification sections B, C, D and F, the proportion of UP ranged between about 24% and 28%, and is comparable to or slightly exceeds the average proportion of UP of about 24.5%.

Concluding remarks

The EP and UP data for the ten-month period between June 2023 and March 2024 are in line with our earlier analysis and shows that the UP system has taken a steady start and is well underway. After an initial peak in June 2023, currently on average 23.5% of granted EPs per month are registered to have unitary effect. 

Furthermore, the Unitary Patent is clearly an important element when determining an optimal patent protection strategy. In general, European patent holders seem more likely to request for unitary effect compared to patentees from the United States, China, or Japan. This may reflect a better familiarity with the system, and the importance of the home market to European patent holders. In addition, the proportion of UP also varies with the technological field of the granted EP. While in certain technology areas this reflects the dominant position of non-European companies, which may overall be less inclined to request for unitary effects, other patent protection related factors, such as the risk of litigation or company size and available budget, cannot be excluded.

In case of any question, do not hesitate to contact us at info@dcp-ip.com.