A Unitary Patent must cover all participating Member States

UPC Court of Appeal: Papst Licensing GmbH & Co. KG v EPO – CoA_8/2026, 9 February 2026

Since the inception of the Unitary Patent system, it was generally accepted that a European patent could benefit from unitary effect only if it covered all participating Member States at the time of registration. In particular, European patents not designating Malta were considered ineligible for unitary protection.

This interpretation has now been expressly confirmed by the Court of Appeal of the Unified Patent Court in Papst Licensing GmbH & Co. KG v. EPO (UPC_CoA_8/2026, decision of 9 February 2026).

The case concerned a European patent resulting from an application filed before Malta’s accession to the EPC in 2007. Since Malta could not be designated on the filing date, the granted patent did not cover that territory. The proprietor nevertheless requested unitary effect, arguing that the patent should be able to benefit from such protection for the other participating Member States. Before the UPC, Papst Licensing argued that the expression “granted for all the participating Member States with the same set of claims”, in Article 3(1) of Regulation 1257/2012, should be understood as referring to “all participating Member States which could be designated for that European patent …”, and that States which could not be designated should not, in this respect, be regarded as participating Member States. In practice, Papst Licensing was therefore seeking unitary effect while excluding Malta — a territorial “carve-out”.

The Court of Appeal rejected this argument and confirmed a strict reading of Article 3(1) of Regulation 1257/2012. It noted in particular:

“It is apparent already from the wording of Article 3(1) of Regulation 1257/2012 that a European patent can only benefit from unitary effect if it is granted with the same set of claims in respect of all the participating Member States.”

The Court therefore concluded that:

“Article 3(1) of Regulation 1257/2012 cannot be interpreted to allow registration of unitary effect for a granted European patent which does not include the designation of one of the participating Member States”

In practice, however, this situation should concern only a limited number of patents. It essentially concerns certain older patent families originating from applications filed before Malta’s accession to the EPC on 1 March 2007. For such patents, access to the Unitary Patent is now clearly excluded.

Philippe OCVIRK, European Patent Attorney, UPC Representative