Winds of Change: Taking Advantage of The New Unitary Patent

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Carl Bryers
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May 11, 2023
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Patent Strategy
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Energy
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As the demand for renewable energy continues to grow, it becomes increasingly important for manufacturers of wind turbines to patent their technology. The new option of "Unitary effect" can provide a cost-effective route to protection in many EU territories. This update explores how it can form part of a strategy for renewable energy, taking wind turbines as an example.

The unitary patent – a powerful tool for wide geographical coverage in the EU

A typical route for patent protection in Europe would require a European patent to be filed and, once granted, "validated" in one or more European countries. This can be very expensive if the technology is to be protected in many countries. As a result, many patentees instead choose to validate their patents in only a small number of countries, typically the UK, France and Germany, meaning they lose out on protection in the other jurisdictions.

In addition, for a patentee to stop a competitor from copying their patented technology across Europe requires taking separate legal actions in each country, which becomes extremely expensive. What's more, each country can be subject to different legal interpretations and challenges.

On 1 June 2023, a new patent system will come into force, allowing a European patent to be converted into a Unitary Patent which is a single right having effect in 17 participating EU countries. The Unitary Patent allows a single legal action to be launched against copycat third parties with effect in all 17 participating EU countries.

At present not all EU countries are part of this new system.While the number of participating countries is expected to increase over time, traditional validation will still be required in countries outside the EU, such as the UK, and those not participating in the unitary patent, such as Spain and Poland.

Case study – Building the unitary patent into a renewal portfolio.

www.windeurope.org monitors wind energy generation for each country across Europe. For a typical day in April 2023, the 15 countries that produced the most electricity were: Spain, Germany, France, Austria, Sweden, Poland, UK, Romania, Denmark, Portugal, Belgium, Finland, Netherlands, Greece, and Croatia (in order of decreasing production).

Under the traditional European patent system, if a patent were to be validated in each of these 15 countries, the renewal fees over the course of the patent's lifetime would total around €109,000. However, given that 10 of those countries are part of the Unitary Patent system from 1 June 2023, savings of around €47,000 could be made by obtaining a Unitary Patent in addition to traditional validations for the non-participating countries. The graph below illustrates the potential cost savings for these renewal fees:

Given the widespread use of wind turbine technologies, manufacturers can consider the benefits of the Unitary Patent system, not only to maximise patent coverage for reduced cost, but to simplify enforcement of the patent should that ever be required.

Of course, no one strategy fits everything and there will be times when the Unitary Patent system is not appropriate.EIP can advise on the most appropriate strategy to fit the particular commercial objective.

Recent Case Reports

See all Case Reports

UPC Court of appeal issues final decision, despite no finding on infringement at first instance
30 March 2026
In Rematec v Europe Forestry, the UPC Court of Appeal overturned the Mannheim Local Division’s revocation of the patent and, applying Article 75(1) UPCA, issued a final decision on both validity and infringement despite no infringement finding at first instance. The Court adopted a narrower, description‑led approach to claim interpretation, confirmed the patent’s validity, found infringement, and granted final remedies without referring the case back to the Court of First Instance.
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Litigation insurance as security for costs
30 March 2026
In Syntorr v Arthrex, the UPC Court of Appeal clarified that while litigation insurance is not itself a form of security under Rule 158 RoP, it is a relevant factor when deciding whether security for costs should be ordered at all. By failing to consider the claimant’s insurance policy, the Munich Local Division wrongly exercised its discretion. The Court set aside the €2 million security order and confirmed that insurance can mitigate concerns about cost recoverability.
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National law applies to claims for loss of profit if the events occurred before the UPC came into force
30 March 2026
In Fives v REEL, the Hamburg Local Division of the UPC dismissed a standalone damages action despite prior findings of infringement. Although the UPC was competent to assess damages, the court held that national law applied because the relevant events pre‑dated the UPC’s entry into force. Applying German law, the court found that the claimant had not proven causation or lost profit, highlighting the demanding evidentiary burden for price‑reduction damages claims and the importance of substantiating counterfactual tender outcomes.
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