The Unified Patent Court (UPC) timeline has been updated to provide helpful guidance ahead of this once-in-a-generation change to patent litigation in Europe. The UPC opt out sunrise is now expected to start on 1st March 2023 and the court intends to open fully on 1st June 2023. In addition, the EPO has now confirmed that requests for the new Unitary Patent (UP) can be filed from 1st January 2023 for pending applications approaching grant.
The arrival of Europe’s new patent system means patentees, and potential infringers, should continue to plan their litigation strategies now, ahead of the court entering into force. A particular focus should be deciding which patents to opt out of the new Court’s jurisdiction as well as preparing for being on the receiving end of one of the Court’s new pan-European preliminary injunctions. While many European firms are ready and eager to dive into the new system, it is helpful that patentees now have an extra two months to prepare by planning their opt out and enforcement strategies for this new court.
The origins of the new Court go right back to the 1970s with the birth of the European Patent Office. So, while these new dates amount to a two-month delay, we are still right on the edge of a historic change to Europe’s patent system. The new timeline was announced this week by the UPC due to some issues regarding the logistics when logging into the UPC’s new electronic registry, but otherwise the judges have been hired, the buildings are ready and the Court should open with a bang in 2023. So, we can be increasingly sure that 2023 will be the year that both the UP and UPC finally arrive.
The Unified Patent Court
The UPC will provide a single forum for pan-European infringement and revocation. Its jurisdiction includes the new UPs, but its powers will also extend to all patents already granted by the EPO (EPs) unless an opt-out is filed. An opt-out keeps the EP in the current system, in which litigation must occur state-by-state in the national courts. It is these opt out requests for already granted patents we expect to start filing from 1st March 2023, although it is also possible to opt out pending applications.
While 24 states are involved in the UPC project (the EU, omitting Spain, Poland, and Croatia), the UPC will likely cover a subset of 17 of these countries from day one, as summarised by our online landscape tool. Nonetheless, the UPC is likely to be an attractive forum e.g. for parties who missed the EPO opposition period or patentees who want a single decision on enforcement across several participating Member States.
The Unitary Patent
The UP will be a single patent covering a range of participating EU Member States UPs are a new kind of patent that will be issued by the European Patent Office (EPO) which will require no national validation and will benefit from greatly reduced translation requirements, sometimes significantly reducing the costs incurred at grant. UPs also offer the potential for further cost-saving due to a single annual renewal fee being payable for the UP, rather than the separate national renewal fees payable after national validation under the current system. Our online cost estimator allows you to visualise the possible cost savings that could be achieved by choosing a UP over the current system of obtaining separate national patents. Perhaps the most obvious beneficiaries of the arrival of UPs might be innovators in the life sciences arena, where patent protection across most of Europe is often desirable.
UPs will start being granted once the UPC is fully operational, likely in June 2023 based on the newly announced timeline. However, the EPO announced a separate UP sunrise period that will allow applicants to request a UP from 1st January by requesting that grant is delayed until the UPC becomes operational. So, provided the applicant does not mind delaying grant by at least six months from today, requests for Unitary Patents will be possible from the very start of 2023. The upshot of these options at the EPO is that almost all pending European patent application could be UPs if the applicants want to make use of this new tool to protect their inventions across Europe in 2023.
Summary
With the new court and new patent both arriving in a matter of months, it is now time for everyone to continue preparing for this new system in earnest.
The UP may offer help in the form of reduced costs to obtain wide geographical protection, something that might be particularly useful for early-stage biotech and pharma companies with products that are in the early stages of development. This advantage comes with the further benefit of central enforcement, but at the risk of central revocation at the UPC. Patentees who do not want existing granted EPO patents to fall under the jurisdiction of the UPC should get ready to opt them out before the new court gets up and running. Further updates and information on the development of the UPC system are available here.
Carpmaels & Ransford looks forward to both representing clients at the UPC and requesting UPs as soon as they are available from the EPO. The promise of a single European patent system, first proposed in the 1970s, is now nearly here after a long and twisting road.
