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3 April 2023

The Unitary Patent and Unified Patent Court: A Brief Introduction

1 June 2023 marks the formal start of a new era for patents in Europe, with the introduction of the separate, but related, UP and UPC systems. These are designed to further harmonise the patent landscape in those countries participating. Both systems represent post-grant options which supplement the existing procedures of the European Patent Office, rather than replacing them.

The Unitary Patent (UP)

The UP will be an option after-grant for patent owners to obtain a single “unitary” right across 17 participating countries in place of the traditional national validations. The initial group of 17 participating countries compares with the 38 countries in total that are members of the European Patent Convention. A map of participating countries is presented here, but notable countries which will be part of the system at the outset will include Germany, France, Italy, and the Netherlands, while notable absentees will include the United Kingdom, Spain, and Poland. The introduction of the UP does not affect procedure for countries that are not participating.

If you would have otherwise validated in four or more of the participating countries, the UP may be a cheaper option since it in theory simplifies the post-grant process and also reduces the number of ongoing annuities payable. On the other hand, if your current strategy involves validation in a smaller number of participating countries, the UP may represent a less expensive option for broadening the territorial scope of protection than had previously been available.

It will remain possible to choose to validate conventionally, both for countries within the system and those outside it. Thus, for example, a granted European patent application could be registered as a UP and additionally validated in the UK. Alternatively, the patent could be validated in the UK, France, and Germany only — this would be less costly but would result in less territorial coverage compared to the UP + UK option.

For more information click here.

The Unified Patent Court (UPC)

The UPC is a new court system designed to centralise patent litigation in those countries taking part. It will be the only court system applicable for UPs, but will also have a role for “classical” European patents (i.e. those validated in the traditional way) in participating countries.

This means that, regardless of whether you look to obtain UPs in the future, your existing portfolio will be subject to the UPC unless action is taken. For patentees nervous of this change, perhaps fearing the possibility of central revocation of their patents across the participating countries, there will exist an option to opt-out from the jurisdiction of the UPC. A sunrise period is now open to allow this to be done before the Court itself starts operating.

For more information click here.

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