Two EU regulations provide the legal framework for the Unitary Patent system:
- EU Regulation No 1257/2012 (OJ EPO 2013, 111) creates a "European patent with unitary effect", commonly referred to as "Unitary Patent";
- EU Regulation No 1260/2012 (OJ EPO 2013, 132) lays down the translation arrangements for Unitary Patents.
As some EU Member States did not want to participate in the Unitary Patent project, the Council of Ministers of the EU – having heard the European Parliament – decided in March 2011 to authorise a group of Member States to implement "enhanced co-operation" in the area of Unitary Patent Protection under Article 20 of the Treaty on the European Union. Currently, all EU Member States except Croatia and Spain are participating in this enhanced co-operation. Following their adoption by the European Parliament and the Council in December 2012, the two EU regulations entered into force on 20 January 2013. However, they will only apply from the date of entry into force of the UPC Agreement.
Soon after the EU regulations on the Unitary Patent system were adopted, the participating Member States set up a Select Committee of the Administrative Council of the European Patent Organisation, in accordance with Article 145 EPC, to prepare for the system's implementation at the EPO. In December 2015, the Select Committee adopted the necessary secondary legislation, in particular:
- the Rules relating to Unitary Patent Protection (OJ EPO 2016, A39), which provide for the establishment of a Unitary Patent Division at the EPO and lay down the procedures to be carried out by the EPO under EU Regulations No 1257/2012 and No 1260/2012. The main provisions relate to the request for unitary effect and the procedure for obtaining a Unitary Patent at the EPO
- The Rules relating to Fees for Unitary Patent Protection (OJ EPO 2016, A40) set out the fees to be paid to the EPO by proprietors of a Unitary Patent and the methods of paying them. They also lay down the amount of compensation for translation costs which SMEs, universities, non-profit organisations and public research organisations having their residence or principal place of business in an EU Member State can get if they opt for a Unitary Patent after filing a European patent application in an official EU language other than English, French or German.
The Select Committee also adopted the Budgetary and Financial Rules (OJ EPO 2016, A41) that set out the provisions applicable to managing the income and costs related to Unitary Patents.