Unified Patent Court and Unitary Patent

Two major changes are being introduced into European Patent Law: a ‘Unified Patent Court’, and a ‘Unitary Patent’.  If you have or are responsible for a European Patent or Application, you need to be aware of these changes.  

The action required is simple and straightforward, but does require a decision to be made.

If you do not take any action, the new Unified Patent Court (UPC) system will automatically opt-in your European patent rights, and this could be detrimental.

Context

Under a new and major change to European patent law, there will be a new Unified Patent Court (UPC).

This is a new single court which will have exclusive jurisdiction over validity and infringement proceedings for many of the countries covered by a European patent, including for example, Germany, France and Italy.

This new pan-European court (UPC) will become operational on 1 June 2023.

Concerns

The UPC has no pre-existing case law, and an entirely new cohort of judges. In other words, outcomes from this court will be uncertain for some time.

Our Recommendation

Whilst there may be advantages to the new judicial system, particularly relating to cross-border enforcement of European patents, it is our current recommendation that all existing European patent rights are opted-out of the UPC as a protective measure for the time being.

Any European patent opted-out is exempt from central revocation at the UPC and cannot make use of central infringement proceedings.

Enforcing the European patent would then occur in national courts (e.g., UK, Germany, France) as is the presently the case.

Summary

The current major concern is the lack of any existing case law for this new court system, the new and untested judges who will be deciding cases in this new system and the risk of losing pan-European patent rights in a single action.

Action

The opt-out system is active from 1 March 2023. We would recommend at this time that we opt your European patent rights out.

If no action is taken, your European patent rights will be automatically opted-in to the new court system on 1 June 2023, and you will be bound by this new court system.

Read our UP and UPC Fact Sheet below. This gives more detail about the UPC system, and the new Unitary Patent for Europe.

If you would like to discuss and have advice regarding the new UPC system and unitary Patent, contact us by email at info@albright-ip.co.uk, or call +44 (0) 1242 691 801 to speak to one of our experienced European patent attorneys.