Papst Licensing v EPO – Court of Appeal, 9 February 2026, UPC_CoA_8/2026
The Court of Appeal has dismissed an appeal against the rejection of a request for unitary effect for EP 3 327 608. The case addresses a rare but important eligibility requirement for unitary patents: the European patent must have been granted with the same claims for all participating Member States.
The patent originated from a Euro-PCT application filed in 2005. At that time, Malta had not yet joined the EPC and therefore could not be designated. When the patent was granted in 2025, Malta was a participating Member State of the unitary patent system and a UPCA contracting state. Because the granted patent did not include Malta, the EPO refused registration of unitary effect.
The Court of Appeal confirmed that this refusal was correct. It relied on the clear wording of Art. 3(1) Regulation 1257/2012, which requires a European patent to be granted “with the same set of claims in respect of all the participating Member States”. A unitary patent with a territorial carve-out is not possible. The Court emphasised that even arguments based on proportionality, fundamental rights, or the objectives of the Regulation cannot justify an interpretation contra legem.
Requests to refer questions to the CJEU were rejected.
The decision highlights a structural feature of the unitary patent system rather than a recurring practical risk. The issue only arises where a participating Member State could not be designated at the time of filing. In practice, this mainly concerns very old patent families filed before Malta joined the EPC in 2007.
Other EPC states that joined later (for example Montenegro) are not (yet) EU Member States and therefore cannot currently participate in the unitary patent system. Similar constellations are therefore unlikely to arise in the near future. The topic could, however, re-emerge if Montenegro were to join the EU and subsequently the UPCA. Since Montenegro joined the EPC in 2022, a corresponding problem would likely remain relevant for many years. Because Montenegro does not seem to be many steps away from becoming a EU member state, his scenario could realistically become relevant towards the end of the 2020s.
