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The UP and the UPC

The UP and the UPC

The Unitary Patent and the Unified Patent Court
Europe is on the brink of a new system that will significantly streamline grant and litigation of European patents. The new system will bring about two major changes: (1) the possibility to obtain a Unitary Patent (UP) that covers all states participating in the project with a single right, and (2) the opportunity to conduct patent litigation centrally in Europe at the Unified Patent Court (UPC).

Before the UP and UPC become operational, time is needed for a preparatory phase in which the Court will be set up. This preparatory phase has now started as a result of Austria’s ratification of the relevant protocol on 18 January 2022. The preparatory phase is expected to take about 6-12 months before the UPC can actually become operational. The actual UPC Agreement itself will enter into force on the first day of the fourth month after Germany has deposited their instrument of ratification. You can read the latest news on the UPC here.

The Unitary Patent

A single patent covering all participating states

A Unitary Patent (UP) is a single patent right covering all of the EU member states participating in the project. Once the system is up and running, applicants will have the option to select “Unitary Effect” for their European patents at the grant stage. This will result in a single patent right that gives uniform protection in all of the EU member states that were participating in the system at the time unitary effect is requested. UPs will be subject to the payment of single renewal fee and will require only one translation, potentially leading to significant cost savings. Read more here.

The Unified Patent Court

Central enforcement and revocation in Europe

The Unified Patent Court (UPC) is a new international organisation that will eventually have exclusive competence for disputes relating to infringement and validity of all European patents. The new court will have exclusive competence for new Unitary Patents from day one. However, during an initial transitional period of 7 years, the UPC will only have competence over traditional European patents if they have not been expressly opted-out of the system.

Rulings of the UPC will have effect in the territories of all member states participating in the project, providing an opportunity for central enforcement of patent rights in Europe (as well as central revocation). You can read more about the Unified Patent Court here. 

Your strategy

The Unitary Patent and the Unified Patent Court will affect new and existing patents and patent applications. As a result of the “opt-out” arrangement for traditional European patents, the new court will have competence over existing patents unless they are expressly opted out of the system. The option to obtain a Unitary Patent will exist for applications that are pending when the new system comes in, and it might even be desirable to delay the grant of an application until the option to select a UP becomes available. The EPO has implemented two new options (for patent applications for which a communication under Rule 71(3) EPC) has been issued) which allow early request for unitary effect or request for a delay in issuing the grant decision. These options will become available from the date Germany has deposited its instrument of ratification.

The different possibilities for litigation under the new system will provide benefits and risks for parties seeking to enforce their patent rights and those seeking to invalidate third party patents. There is no one-size-fits all strategy and NLO will therefore offer a number of specific services relating to Unitary Patents and the Unified Patent Court to help you navigate the new system. You can read more about how the new system might impact your European patent strategy here.