EPO Patent Index shows UPC effect as companies request unitary protection

According to statistics released this week by the European Patent Office in its annual EPO Patent Index, patent owners requested unitary protection for 17.5% of all European patents granted in 2023. This is equal to over 18,300 filed requests.

Of the overall total, patent owners requested unitary protection for 22.3% of patents granted in the second half of 2023. Although the figures are not drastic, they demonstrate a slow and steady start to the UPC’s tenure.

New forum, UPC

The Unitary Patent, which can be enforced or litigated at the Unified Patent Court, provides legal protection across 17 EU member states. Companies can opt to gain protection via the Unitary Patent rather than via a bundle of national patents, which would require filing patent applications individually at the required patent offices.

However, the UPC system also means that, should the supranational court revoke a patent, this will have an immediate impact across all relevant jurisdictions. Previously, companies would have to oppose national patents via each relevant national court system.

EPO president António Campinos says, “Our latest Patent Index shows that innovation remained vibrant around the world in 2023. Europe’s small and medium-sized enterprises are making ever-increasing use of patents, with the share of applications from SMEs at its highest level yet last year.”

He continues, “These businesses can also now benefit from the new Unitary Patent, which significantly improves the environment for innovation in Europe, providing a simpler and more cost-effective option for innovators to protect their inventions and bring them to the vast EU market.”

Patent Index highlights trends

As of 20 March 2024, at the time of publication, the cumulative request total for unitary protection is 22,484. Of these, the EPO has granted 97.3%, which is equal to 21,885, and rejected just 0.1%, or 15 of the overall total. Currently, 2.5%, or 553 applications, remain pending. Medical technology, civil engineering, transport, ‘other special machines’ and measurement are the leading industries by volume of applications for unitary protection filed.

Given the initial reluctance of some pharmaceutical companies to opt-in their patents to the UPC, it is perhaps unsurprising that the sector is tenth overall for requests for unitary protection. Pharmaceutical companies are perhaps exercising caution when risking valuable intellectual property assets which could be invalidated via a single revocation action.

Elsewhere, in descending order the sectors of handling (in mechanics, the act of transporting raw material from one site to another), computer technology, electrical machinery and digital communications are in places nine to six.

Unitary protection piquing interest

According to the EPO, patentees from the EPO’s 39 European member states had the highest uptake rate at 25.8%. Patentees from the US and China came joint second, with an equal uptake rate of 10.9%, while the Republic of Korea (South Korea) and Japan came in at third and fourth at 9.7% and 4.9%, respectively.

While the UK is not part of the Unitary Patent system, UK-based patent owners filed 770 requests for unitary protection in 2023, equal to a 24.8% uptake rate. This exceeds the average of 17.5%. According to the EPO Patent Index, the top five companies requesting a Unitary Patent were Johnson & Johnson, Siemens, Qualcomm, Samsung and Ericsson. Interestingly, despite being the overall leading EPO applicant during 2023, Huawei comes in eighth in the overall unitary protection request list.

Of the top five companies, only Ericsson is currently participating in an active UPC dispute on the merits. In March, Lenovo subsidiary Motorola filed two infringement suits with the Munich local division (case IDs: ACT_5326/2024 and ACT_5324/2024).

The remaining companies making up the top ten are Volvo, Becton, Dickinson & Company, Fraunhofer-Gesellschaft and Vestas.