On 17 February 2023, the German government ratified the Unified Patent Court Agreement. The new Unitary Patent system and its patent enforcement system, the Unified Patent Court (UPC), will therefore commence in Europe on 1 June 2023.
For European patents granted before 1 June 2023, it is necessary to validate the patent in each European country in which the applicant wishes that patent to take effect, which in many countries involves the filing of a translation into a relevant language, and then paying annual renewal fees in each of those countries in order to maintain the European patent in force.
The Unitary Patent system provides a new option, alongside the existing validation system, to bring a European patent into force in all participating EU countries (17 countries at commencement), with a single form, a single translation into another EU language and no official fee. A single renewal fee is then payable for those countries.
It will be possible to obtain a Unitary Patent for any pending European patent application on which a Notice of Allowance has been issued, but the applicant has not yet approved the text intended for grant, as well as European patent applications allowed in the future.
Unified Patent Court
The UPC will enable centralised infringement and invalidity proceedings for all Unitary Patents. The UPC will also have jurisdiction (in parallel with the national courts) over all existing European patents (in the 17 participating EU Member States) and over all future granted European patents that are validated through pre-existing validation procedures unless these patents are formally opted out of the Unified Patents Court.
The concern at this time with the UPC is the uncertainty regarding the quality of its decisions and the risk of central revocation, compared to revocation actions having to be brought in separate territories under the jurisdiction of national courts.
Option to opt out
Once the UPC has commenced, it will be possible to request that European patents or European patent applications are opted out of the jurisdiction of the UPC at any time. However, it will not be possible to opt out Unitary Patents from the UPC, which will assume exclusive jurisdiction in relation to the litigation matters for all seventeen countries that have ratified the UPC Agreement.
There will be a “sunrise period” for opting out of the UPC that will begin on 1 March 2023. From this date, the UPC will begin accepting requests for existing European patents to be opted out of the jurisdiction of the new UPC. An opt out request filed by 31 May 2023 will ensure that the opt out is effective when the UPC commences on 1 June 2023.
Further information regarding the Unitary Patent and the UPC can be found in our Guide – A guide to the unitary patent system.