The Unified Patent Court (UPC) is likely to arrive in 2022 after a long period of uncertainty. A total of three different constitutional challenges in Germany have been significant stumbling blocks over the years, but the German Constitutional Court has now removed the last barrier to German ratification. This means the UPC could come into force in 2022, at which point 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 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
The UPC and UP will come into force together once sufficient participating Member States ratify the agreements. Now that the path to German ratification is clear, we expect the new system to come into effect in 2022, although there should be more clarity regarding the timing from the preparatory committee in the near future.
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.