What is the Unified Patent Court?
The Unified Patent Court (UPC) is a new court, that enters into force on 1 June 2023.
The UPC will per default have jurisdiction over national patents which are being or have been validated in one or more of the current seventeen countries (UPC-countries) that have joined the UPC. This means that one ruling will have effect in all the validated UPC-countries.
What is the Unitary Patent?
The Unitary Patent (UP-patent) is obtained through an EP-patent. The UP-patent provides unitary protection in several countries at once, the UPC-countries. The advantage is that you only have file a single application, which will cover all the countries that, at any given time, are members of the UPC. These are currently the countries marked in blue on the map.
The members:
The Unified European Patent Court
The UPC specializes in patent rights. Judgements will be decided by international teams of legally and technically qualified judges.
The UPC will work quickly with short deadlines and judgements within one year from summons. These deadlines are much shorter that we are used to in national court proceedings. In national court proceedings, it is usually possible to apply for extension of deadline which can add additional time to the court proceedings. This is not allowed at the UPC and hence, the 12 months from the summons to the ruling is a strict aim of the UPC. You must therefore be prepared to react if legal actions are made against you.
With the UPC in force, the UPC will automatically be the judicial authority for all validated patents in the 18 member countries (UPC-countries), unless an active deselection is made (‘opt out’).
The difference from today is that the Unitary Patent or validated patents can be summoned before the European Patent Court, where one ruling will be applied to the Unitary Patent or all the UPC- countries where your EP patent is validated. If you do not ‘opt out’, then the EP patent will automatically be included in the UPC, however there will be a so-called ‘sunrise period’.
The Patent Court is new and thus no case law has been established. There are detailed descriptions of how the Patent Court want to function, but it is unknown how the Patent Court will function in practice.
Pros and cons for the Unitary patent (UP-patent)
One good reason for choosing the UP- Patent for pending EP patents is that it is significantly cheaper to obtain protection in all the UPC-countries with one patent compared to validating the EP-patent in the individual countries. Also, the ongoing annual fees will be significantly lower for the UP-patent compared to nationally validated EP-patents in all the UPC-countries.
The UP-patent is enforceable under the UPC so that you, but also your competitors, will only have to enforce the UP-patent at the UPC.
However, that also means that by choosing an UP-patent, you cannot deselect the UPC as the jurisdiction.
Hence, the Unitary Patent offers the possibility of obtaining a single unitary right for 18 European countries at significantly reduced costs compared to today. The reduced costs will in many cases outweigh the uncertainty of the new Patent Court.
The UP-patent is a reality from 1 June 2023.
Deselection of the Patent Court – ‘opt out’
In connection with the entry into force by of the Unified European Patent Court, a so-called ‘sunrise period’ has been introduced. During this period, it will be possible to deselect the Patent Court.
This option is referred to as ‘opt out’ and is only possible for nationally validated EP-patents in the UPC-countries.
By opting out you can later ‘opt in’ to the UPC, though it will only cover the countries where you originally validated your EP patent. At this stage, the sunrise period is expected to be in force for the next seven years.
If you wish to opt out of the Patent Court for your already validated patent rights, or if you have further questions, please contact us and we will be happy to help. Please note that the Patent Court will automatically join as an adjudicating authority unless an active deselection is made (‘opt out’).
When does the UPC enter into force?
The UPC will enter into force on 1 June 2023. For more information, please visit the Unified Patent Court website.
How does the Unitary Patent work?
A Unitary Patent is applied for in the same way as patents are applied for today, the only difference is that you now obtain protection in all the member countries with a single application.
Conversely, this also means that in the future there will be a greater risk of being attacked by a competitor who brings an infringement proceeding against you. We expect that more people will be motivated to take legal action because it will be much cheaper and faster to bring a single action before a single court, which will deliver a single judgement that applies in all member countries. Until now, a case had to be brought in each country to prevent a competitor from selling a product in that country. The UPC has jurisdiction in all member countries that joins the system, just as it has jurisdiction over all existing European patents (EP patents).
How to prepare for a case before the UPC?
Based on the above, we recommend that you prepare an infringement assessment, so that you can be prepared when/if you are accused of infringing someone else’s patent. Because, as mentioned earlier, once a case is brought before the Patent Court, there is not much time to react. On the other hand, it is also a good idea to consider what you might want to take to court yourself.
Get advice on the Patent Court
We have several European Patent Attorneys who have many years of experience, and they are of course fully updated in all the new developments concerning both the new Patent Court and the Unitary Patent. They work closely with experienced lawyers, we are all under the same roof, and our lawyers have extensive experience in conducting patent cases. With us, you get all expertise gathered in one house.
Do not hesitate to contact us if you need advice on what to with your current patents (‘opt in’ or not) and your future patents. We can also help you with an infringement assessment.
