A new system for granting and litigating patents in Europe
The Unitary Patent Court (UPC) is not expected to come into force until 2020 at the earliest by which time the UK will likely have left the EU. The UK government has however indicated its continuing support of the Unitary Patent system. The UK government is currently in negotiations concerning its membership of these systems. Regardless of the outcome, Carpmaels & Ransford will be able to obtain UPs and represent clients before the UPC.
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, as shown by the estimator tool below.
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, as shown in our landscape tool below.
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. 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
The UPC and UP will come into force together once sufficient participating Member States ratify the agreements. The UK ratified the agreement in 2018 and we expect the system to come into force in 2020, although it may be further delayed. Strategies for opt-out, UPs and IP agreements should be prepared now in order to be ready for this new system. The estimator tool below shows the possible cost savings associated with the UP. Our landscape tool provides a summary of which states are likely to be covered by the new system. More information can be found in our in depth UPC & UP guide.