Will double patenting under the UPC be possible?

With the expected introduction of the Unitary Patents it will be possible to obtain a single patent that covers up to 25 European states. At the same time patent protection can be obtained by prosecuting patent applications through national patent offices of individual ones of these member states. If patent applications leading to granted national patents and UPs respectively are made with the same priority date then they do not act as prior art against each other such that there is a real chance that two patents covering a particular may be granted for the same invention. If these two patents were filed by the same applicant then there is a danger that these two patents could be used independently against an alleged infringer.

The above concern is the classic double patenting concern. This concern is not new as it has been possible for many years to obtain patent protection through a “traditional” European patent application that is validated in countries of choice after grant while obtaining additional patent protection directly through the relevant national patent office of that country. Answers to the other questions in this section explore how double patenting provisions are likely to change with the introduction of Unitary Patents.

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