Who is using the Unitary Patent System (and who is not)?

Since June last year, patent proprietors have had the option of registering their European patents as Unitary Patents. Instead of having a bundle of national rights, proprietors have the option to maintain a single Unitary Patent right extending across the member states participating in the Unified Patent Court (UPC).

The primary attraction of such Unitary Patents is the lower cost for patent protection, as protection can be maintained across 17 participating member states by filing a single translation with the European Patent Office (EPO) and paying maintenance fees similar to the costs of maintaining protection in four of those countries. The major downside of such Unitary Patents is that they are always subject to revocation in a single court action, whereas if opted-out from the jurisdiction of the UPC, individual national patents can only be revoked on a country-by- country basis.

The EPO has been tracking the uptake of Unitary Patents and according to the EPO  website patent proprietors are choosing to convert around 18% of European patents into Unitary Patents.  The EPO also reports both the technology fields where the greatest numbers of Unitary Patents have been granted and the patent proprietors owning the greatest numbers of Unitary Patents.

As of 1 March 2024, the EPO reported the following as the top ten fields for Unitary Patents and the top ten proprietors of Unitary Patents.

From the raw numbers, it would appear that the Unitary Patent System has been enthusiastically embraced by tech giants such as Siemens, Qualcomm, Samsung and Ericsson which has led to digital communications being the 6^th most common field of technology for Unitary Patents. However, such raw numbers do not take account of the fact that there are far higher numbers of patent applications in some fields than others. When this is considered, a very different picture appears.

Take up of Unitary Patents by field of technology

Scaled by numbers of patent applications in each field of technology, the take up of Unitary Patents in different fields to date are as follows:

Similarly, when compared with the numbers of patent applications various proprietors filed in 2021 (a reasonable indicator of the numbers of patent applications filed by an applicant each year), the extent to which some of the top Unitary Patent proprietors have embraced Unitary Patents is more tempered as is shown in the table below. As can be seen, in reality, Samsung and Huawei are actually converting a relatively small proportion of their patent applications into Unitary Patents.

Rather, when considering the numbers of patent applications different applicants file, the most enthusiastic users of the Unitary Patent System relative to patent filings appearing in the EPOs top users list, are Align Technology, followed by Pirelli and Vestas (see below).

Notable also are the major patent filers who appear on the EPOs top filers lists, but who have made very little or no engagement with the Unitary Patent System as are listed below.

Other, notable opt-outs appearing in the EPO’s top 50 patent filers for 2021, who appear yet to have engaged with the Unitary Patent system include: Baidu, 3M, CEA, Dow Chemical, HP and NTT Docomo, all of whom filed between 691 and 461 European patent applications in 2021 and all of whom are yet to register any Unitary Patents.

Conclusions

The picture these numbers paint is a nuanced one.

Historically, around 50% of European patent applications (most typically electronics patent applications) were validated and maintained in UK, Germany and France. A further 40% (often mechanical patents) were maintained in between 4-6 jurisdictions (often UK, Germany and France and along with a selection from Italy, Spain, and the Netherlands) with the remaining 10% of European patents (typically pharmaceutical patents) being maintained more broadly, sometimes (around 2% of patents) much more broadly.

That the fields of technology where proprietors most frequently choose Unitary Patents (e.g. civil engineering, furniture, machine tools, handling & other machines) are predominately in the mechanics field, suggests that to date, the success of the Unitary Patent has been replacing European patents which previously would have been maintained moderately broadly. Presumably, patent proprietors in such fields have been attracted by the potentially lower maintenance costs for such patents.

It is, however, also clear that different patent proprietors, even in the same areas of technology have very different approaches. Some (e.g. Volvo and Pirelli in the automotive field) are enthusiastic users of the new system. In contrast other major filers in the same field (e.g. Volkswagen who filed 459 European patent applications in 2021 and currently have 13 Unitary Patents) have barely used it.

Moving on to the electronics fields, the numbers suggest that some proprietors (e.g. Siemens and Ericsson) are choosing to covert around 15-20% of their European patents into Unitary Patents. However, many others (e.g. Samsung, Huawei & Nokia) are choosing to obtain Unitary Patents at a far lower rate or (e.g. Sony, Microsoft, NTT Docomo) not at all.

The relatively low take up of Unitary Patents in the electronics field relative to the total numbers of patent applications filed in that field suggests that the additional translation costs involved in registering a Unitary Patent compared with maintaining rights solely in UK, Germany and France (where protection can be obtained without filing a translation of a patent) is causing proprietors in those fields to delay embracing the Unitary Patent.

For large companies, a selective approach is entirely sensible. Typical translation costs for a Unitary Patent are expected to be around €5,000 per patent and translation costs will mount up to a considerable sum when a patent proprietor is filing thousands of applications each year.

As the present analysis focuses on the most active users of the Unitary Patent System and the largest filers of European patent applications, the behaviour of smaller companies is harder to discern. However, there are hints that at least some smaller companies are actively embracing the Unitary Patent System. Many of the fields of technology where Unitary Patents are proving popular (e.g. civil engineering, furniture, machine tools, handling & other machines) are fields which tend not to be dominated by exceptionally large filers of patent applications. It is also notable that it is the two smallest patent filers (Align Technology and Pirelli) covered by this study, both of whom filed less than 50 patent applications in 2021, who appear to be converting the greatest proportions of their patent portfolios into Unitary Patents.

Finally, the relatively low take up of Unitary Patents in the chemical and life science fields, would seem to confirm the reluctance of patent proprietors or at least the most frequent patent applicants, in those fields to expose potentially very valuable individual patent rights to the risk of revocation in a single court action. In most cases, this reluctance would appear to outweigh the potentially significant cost savings which the Unitary Patent route affords rights which are broadly maintained across Europe. However, even then, patent proprietors in those fields are converting around 10-15% of their granted European patents into Unitary Patents.