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Unitary Patent and the Unified Patent Court

Overview

If you are holding or applying for patents granted by the European Patent Office (EPO), you should ensure that you are well informed about a major change to European patent law which may now come into being late in 2022. The anticipated introduction of the Unitary Patent is expected to offer opportunities to reduce costs, extend territorial scope of protection, speed up litigation and increase legal certainty across a part of Europe.

A Unitary Patent will be a single patent covering all participating European countries. It will be possible to obtain a Unitary Patent based on any European Patent granted by the EPO after the agreement comes into effect. It will still be possible to secure patent protection by the traditional validation route for those countries not participating in the Unitary Patent, or, for participating countries, as an alternative to the Unitary Patent.

A second big change for which preparations are being made is the establishment of a new patent court, the Unified Patent Court (UPC). Litigation involving a Unitary Patent will be subject to the sole jurisdiction of the UPC. The UPC will also have non-exclusive jurisdiction for all national validations of European Patents for the participating countries, including European Patents granted before the agreement comes into effect, unless the rights holder(s) proactively 'opt out' of the UPC.

The introduction of the Unitary Patent and the Unified Patent Court will affect all holders of existing European Patents. It will also affect applicants for European patents that have not yet been granted. All European Patent holders and applicants will need to consider how to take advantage of the opportunities and protect themselves against the threats arising from these changes. 

Germany is free to deposit its instrument of ratification of the Protocol on Provisional Application (PPA) with the EU at any time. The chairman of the UPC preparatory committee has acknowledged that the express mention of London and the UK in the Unified Patent Court Agreement (UPCA) and PPA respectively “needs to be dealt with by the State Parties in accordance with international law” and that he is “hopeful that this can be done in a pragmatic way that will avoid any further delay”. Assuming this can be achieved, if two further states in addition to Germany deposit instruments of ratification of the PPA, the PPA can come into force and final steps to implement the UPCA can commence. Germany is expected to deposit its instrument of ratification of the UPCA once it is clear when the UPC will be functional. This will start a four month sunrise provision before the UPCA enters into force. This could be as early as autumn 2022.

For more information please contact Martin Jackson.

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