Unified Patent Court
Overview
On June 1st 2023, the unitary patent (UP) was introduced and the Unified Patent Court (UPC) opened its doors. The UP is a European patent that will provide uniform protection across all participating countries and will substantially reduce cost of patent protection across Europe. The UPC will serve as a single venue for proceedings to enforce or invalidate UPs (for which it has exclusive jurisdiction) and European patents (EPs). The UPC’s decisions will have pan-European effect. Seventeen countries take part in the UP system, including Germany, France, Belgium and the Netherlands. In the future, further EU member states may join. Following Brexit, the UK is no longer an EU member state and has decided not to participate, along with Spain, Croatia and Poland.
As one of Europe’s leading IP firms, we understand the challenges and opportunities the new system will bring for parties to pan-European patent litigation. We helped conceive the new procedural system and are familiar with the cultural and legal differences that will undoubtedly affect the UPC. Our seasoned patent litigators have many years of cross-border patent litigation experience in all key European jurisdictions.
The 17 participating countries are Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxemburg, Malta, the Netherlands, Portugal, Slovenia and Sweden.
Five things you need to know
about unitary patents and the UPC
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Case Comments
- Paris Local Division rules on the scope of a counterclaim for revocation before the Unified Patent Court pending overlapping national action – Case comment by Laurène Borey
- Assessment of a representative’s independence under the UPCA and its Code of Conduct – Case comment by Loïc Steukers
- Court of Appeal of the Unified Patent Court clarifies conditions for public access to case files – Case comment by Léon Dijkman
- Unified Patent Court’s Court of Appeal issues first substantial ruling – Case comment by Léon Dijkman
- UPC Proceedings: Munich Local Division sharpened principles of patent claim construction– Case comment by Charlotte Cuny and Sebastian Kratzer
- UPC Proceedings: A pragmatic take on ARticle 33(3) UPCA and bifurfaction– Case comment by Charlotte Cuny and Sebastian Kratzer
- Broad access to UPC revocation proceedings for third parties– Case comment by Daphné Sauvajon
- UPC Proceedings: will English be the lingua franca? – Case comment by Alix Fourmaux
- Court of Appeal of the Unified Patent Court clarifies conditions for public access to case files – Case Comment by Léon Dijkman
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News
- Article: The UPC strategies of the top 5 most active claimant firms – JUVE Patent
- Article: HOYNG ROKH MONEGIER wins Managing IP’s European Impact Case of the year Award for work in the UPC proceedings against Revolt Zycling on behalf of client myStromer
- On April 22nd 2023, our partner Willem Hoyng held his valedictory address at the University of Tilburg under the title: “The Unified Patent Court (UPC) opens its doors! Some observations.” You find the contents of this address here.
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More inside thoughts about the UP/UPC
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1. The Unitary Patent
The unitary patent is not a new type of patent but rather a modification of the existing European patent, traditionally regarded as a “bundle” of national rights. Patent holders now have the option of replacing a significant portion of that bundle with the UP, a single patent valid in all participating member states. The choice for a UP (for the 17 participating countries) can be made within three months after the grant of the European patent for the participating 17 countries, provided that these European patents for all countries have the same claims. The costly and complex requirements related to validating and maintaining national patents will cease to exist. The cost of a UP will be more or less equal to validating traditional EPs in four countries. If the patentee does not apply for unitary effect, it will receive a traditional bundle of national rights.
The validity requirements for UP’s are the same as for traditional European patents and will be governed by substantive patent law of the European Patent Convention (EPC). The biggest changes are expected to be on the enforcement side, with the creation of the UPC as a transnational venue for patent litigation in Europe. The UPC will have exclusive jurisdiction to hear UP cases.
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2. The Unified Patent Court (UPC)
A transnational unitary right requires a court with transnational unitary jurisdiction. The UPC’s jurisdiction, however, is not limited to the new UP and will extend to all existing and future European patents, except for patents that have been opted-out. The decisions of the UPC will be binding in all member states designated in the patent that have ratified the UPC Agreement. This means that the UPC will be able to issue pan-European injunctions and revocation decisions that affect all parts of an EP at once. During a transition period (currently set at seven years) following the entry into force of the system, it will be possible to exclude traditional European patents from the jurisdiction of the UPC by opting out. This avoids the risk of a one-shot pan-European revocation, but at the cost of giving up the possibility of efficient pan-European injunctions. It will no longer be possible to opt-out if an action (such as a revocation action) is already pending or has been pending before the UPC. Therefore, for patents already in force, opt-out will best be done sooner than later. However, one should realise that, after an opt-out, an opt-in is only possible if the patent (or SPC) has not been the subject of litigation in a national court of the participating countries.