The Unified Patent Court (UPC) has now entered the provisional application, or soft-start, phase following the ratification of agreements by a sufficient number of participating Member States. This means the UPC Agreement could come into force as soon as the beginning of 2023, at which point the new court will open its doors and the EPO will also be able to start granting Unitary Patents (UPs). We look forward to offering clients the chance both to enforce their patents across Europe using the UPC and to protect their inventions with UPs.
The Unitary Patent
The Unitary Patent (UP) will be a single patent covering all participating Member States of the European Union (EU). It will be available with almost no translation costs and will have a single relatively low renewal fee. These changes offer the potential for substantial savings, especially where patent protection across most of Europe is desirable.
The UP will be granted by the EPO following the existing procedure for European Patents (EPs). All EU states are potentially participating Member States with the exception of Spain, Poland and Croatia. The UP is an alternative to existing EPs, and EPs will remain available from the EPO. For example, EPs for non-UP states can be used in combination with a UP to achieve coverage outside the UP system.
The Unified Patent Court
The Unified Patent Court (UPC) will have exclusive jurisdiction over the new UPs, providing a single forum for pan-European infringement and revocation. The UPC’s jurisdiction will also extend to all EPs already granted by the EPO 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.
Irrespective of the opt-out, the UPC will have no jurisdiction over patents in non-EU Member States (e.g. UK, Switzerland, Turkey etc.) and EPs in non-participating EU states. 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.
Time to prepare
With the new court and new patent both arriving in a matter of months, it is now time for everyone to start preparing for this new system in earnest.
The UK and the UPC
The UK government has stated that it will not be seeking involvement in the UP/UPC system. This will not impact the current European patent system; patent applications filed at the EPO will still cover the UK and will be litigated in the UK national courts as usual. As a European IP firm, we are set up to continue to represent our clients in all of their European IP matters. We have a deep bench of patent attorneys and litigators who will be qualified to represent clients at the UPC should it come into effect.