The Unitary Patent (UP) and Unified Patent Court (UPC)

We are here to help you navigate the upcoming changes to the European patent system, soon to be brought about by the introduction of the Unitary Patent (UP) and Unified Patent Court (UPC). It’s exciting to see the UP and UPC finally come into being, but we recognize that this presents patent holders and their advisors with new challenges.
 
We have put together this introductory resource to provide answers to basic questions, and are providing regular updates. However, there is no strategy that will suit every stakeholder. Your next steps need nuanced guidance and careful consideration. We encourage you to contact us so we can facilitate this.

Whether or not litigating patents in Europe is a priority, and whatever perceptions of the utility of the UPC may be, it is necessary for stakeholders to prepare for how to manage their European patent portfolios under the new system now.

Peter Gray - Partner, Tech

Frequently asked questions:

We anticipate that the system will commence in late 2022 or early 2023. The mechanism that brings the UP into existence will be deposit of the instrument of ratification of the UPC Agreement by Germany, and the UP system will apply to European patents from the 1st day of the fourth month following the month in which this occurs.

Initially, the UP will cover 17 EU states: Austria (AT), Belgium (BE), Bulgaria (BG), Denmark (DK), Estonia (EE), Finland (FI), France (FR), Germany (DE), Italy (IT), Latvia (LV), Lithuania (LT), Luxembourg (LU), Malta (MT), the Netherlands (NL), Portugal (PT), Slovenia (SI) and Sweden (SE). The system may be expanded to other EU states later.

No, the United Kingdom will not be covered by the Unitary Patent. It will continue instead to be covered as an individual “validation” country of a European patent, in common with many other countries that are members of the European Patent Convention but not the UPC Agreement, such as Norway (NO), Switzerland (CH), Spain (ES), Poland (PL) and Croatia (HR).

As European Patent Attorneys, we continue to be able to represent clients before the European Patent Office on all matters, including the procedure for registering a European patent as a UP and submitting opt-outs to the UPC. We also have rights of audience before the UPC, although we tend to cooperate with individual litigators (barristers) and other firms (e.g. solicitors or in other European countries) to build specialist litigation teams when faced with complex patent enforcement litigation.  

The UPC is intended to have exclusive jurisdiction for patent litigation relating to countries covered by the UPC system, whether the patent is registered as a UP or not. However, for a transitional period of 7 years from the start of the system, and potentially extendable to 14 years, it will be possible for patent proprietors to opt their conventionally validated European patents out of the jurisdiction of the UPC and to continue to use the national courts. In addition, the courts of any country that is not part of the UPC system will continue to decide cases concerning European patents in that country.

An opt-out is the name given to the mechanism for actively withdrawing a European patent from the jurisdiction of the UPC. If no opt-out is submitted for a European patent, then the UPC will be able to hear cases concerning infringement and validity of the patent (even if the patent is not registered as a UP).

If an action is brought in relation to a patent before the UPC, this will prevent an opt-out being submitted and the UPC will have exclusive jurisdiction in all UP states covered by the patent. If an action is brought in a national court after an opt-out has been filed, the opt-out cannot be withdrawn, meaning that the national courts will have jurisdiction and the UPC cannot be used. In either case, this persists for the lifetime of the patent, and is known as “pinning” the patent to the respective court system.

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