{"id":1229,"date":"2026-06-19T19:06:42","date_gmt":"2026-06-19T19:06:42","guid":{"rendered":"https:\/\/blog.franke-ip.com\/en\/?p=1229"},"modified":"2026-06-19T19:10:25","modified_gmt":"2026-06-19T19:10:25","slug":"unitary-patent-and-national-patent-does-the-prohibition-of-double-protection-still-apply","status":"publish","type":"post","link":"https:\/\/blog.franke-ip.com\/en\/unitary-patent-and-national-patent-does-the-prohibition-of-double-protection-still-apply\/","title":{"rendered":"Unitary Patent and National Patent: Does the Prohibition of Double Protection Still Apply?"},"content":{"rendered":"\n

With the start of the Unitary Patent system on June 1, 2023, a practical question arises for many applicants: can I hold a national German patent for the same invention alongside a European patent with unitary effect (the “Unitary Patent”) \u2013 or does the prohibition of double protection stand in the way? The answer is clear: for the Unitary Patent there is no<\/strong> prohibition of double protection. That is precisely what distinguishes it from the former position regarding a classic European patent validated in Germany. This article explains the reform, the decisive opt-out boundary, and the strategic consequences.<\/p>\n\n\n\n

The prohibition of double protection until May 31, 2023<\/h2>\n\n\n\n

Until the patent reform, Article II \u00a7 8 IntPat\u00dcbkG imposed a strict prohibition of double protection. Where a European patent of the same priority and the same scope had been granted to the same inventor or successor in title with effect for Germany, the same invention could not at the same time be protected by a national patent. The national patent became ineffective to that extent as soon as the European patent could no longer be revoked in opposition proceedings. Anyone taking the European route effectively had to give up their parallel German right.<\/p>\n\n\n\n

The redesign as of June 1, 2023<\/h2>\n\n\n\n

With the entry into force of the Agreement on a Unified Patent Court (UPCA), Article II \u00a7 8 IntPat\u00dcbkG was fundamentally recast. Since then it is, in principle, possible to hold a national German patent alongside a European patent or a Unitary Patent. The prohibition of double protection has not disappeared entirely, but it has been cut back to a narrow scope of application.<\/p>\n\n\n\n

The decisive factor is now jurisdiction<\/strong>: the prohibition applies only to European patents for which an opt-out<\/strong> under Article 83(3) UPCA has been declared \u2013 that is, patents which are not (or no longer) subject to the exclusive jurisdiction of the Unified Patent Court (UPC). Only in that case does a national patent for the same subject matter lose its effect. If, by contrast, no opt-out is declared and the European patent remains within the UPC’s jurisdiction, the national patent retains full effect alongside it.<\/p>\n\n\n\n

Why the Unitary Patent is never affected<\/h2>\n\n\n\n

For the Unitary Patent, the answer is therefore unambiguous. The European patent with unitary effect is necessarily subject to the jurisdiction of the UPC; an opt-out is excluded for the Unitary Patent from the outset. The only constellation in which the prohibition of double protection can still apply \u2013 the opted-out patent \u2013 can therefore never arise for the Unitary Patent. A parallel national German patent remains fully effective alongside the Unitary Patent.<\/p>\n\n\n\n

The position can be summarised as follows:<\/p>\n\n\n\n