2.1. Eligibility (requirements under Rule 5(2) UPR)

To be eligible for unitary effect, a European patent must have been granted with the same set of claims in respect of all 25 participating Member States (Rule 5(2)(a) UPR). This condition must be met irrespective of the territorial coverage of the Unitary Patent in question. A withdrawal of designation for one or more of the participating Member States results in ineligibility for the registration of unitary effect (Rule 5(2) UPR, Art. 3(1) Regulation (EU) No 1257/2012 in conjunction with Recital 7 Regulation (EU) No 1257/2012 and Rule 138 EPC).

The same applies when claims are missing in respect of one or more of the participating Member States. For example, if the date of filing of an application or of the root application in the case of a sequence of divisional applications is earlier than 1 March 2007, the resulting European patent will not have been granted with the same set of claims in respect of all participating Member States as required under Rule 5(2)(a) UPR because the last participating Member State within the meaning of Art. 2(a) Regulation (EU) No 1257/2012 and Rule 5(2)(a) UPR to accede to the EPC, i.e. Malta, did not do so until 1 March 2007 (OJ EPO 2007, 1).

Furthermore, as far as eligibility is concerned, the proprietor of a European patent should not be subject to the restrictive measure laid down in Art. 5s(2) of Regulation (EU) No 833/2014 as amended by Regulation (EU) No 2024/1745, having regard to Art. 5s(5) of that amended Regulation (see the new Rule 5(2)(b) UPR, which entered into force on 15 November 2024; see the notice from the European Patent Office dated 13 November 2024 concerning the implementation of the 14th package of EU sanctions against Russia in procedures related to the Unitary Patent and the amendment to the Rules relating to Unitary Patent Protection (OJ EPO 2024, A97)).