The unitary patent system – a long story coming to an end
The start of the unitary patent system was held up by the United Kingdom (UK) leaving the European Union ("Brexit") and constitutional complaints in Germany. Both obstacles have meanwhile been overcome. The UK will not participate in the unitary patent system. The Protocol on the provisional application of the UPC Agreement (UPCA) entered into effect in January 2022 and the required states for a start of the unitary patent system have completed the necessary steps for ratification. Germany, acting as a "gatekeeper", intentionally has not yet officially notified its ratification in order to ensure that all required practical preparations can be completed before the system starts. After Germany deposits its instrument of ratification, a "sunrise period" of three months will start and after the sunrise period, the UPCA will enter into force. Currently, the sunrise period is expected to start on March 1, 2023, and the unitary patent system is expected to start on June 1, 2023, with the Unified Patent Court opening its doors and starting to receive cases as from that date.
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The unitary patent system in a nutshell
The European patent with unitary effect ("unitary patent") is one single patent right valid in several EU member states (similar to a European Union Trade Mark or a Community Design). In contrast, currently a "classic" European patent is actually granted as a bundle of national patents.
The UP system is fully integrated with the European Patent Convention: There are no changes with respect to the pre-grant phase and the possibility to file an opposition against the grant of the European patent with the EPO. Moreover, the "classic" European patent will still be available.
The Unified Patent Court (UPC) will have jurisdiction over unitary patents and "classic" European patents and will decide on questions of validity and infringement. However, during a transitional period, patent proprietors can opt-out their "classic" European patents from the jurisdiction of the UPC.
In the UPC, legally qualified and technically qualified judges will work together. Moreover, dually qualified German and European patent attorneys may represent parties before the UPC.
Infringement and nullity actions in the Unified Patent Court system may be advantageous for patent proprietors, but potential risks are to be kept in mind. The Unified Patent Court system can increase efficiency when infringement takes place in many member states. Moreover, the involvement of technically qualified judges and the possibility to be represented by a patent attorney may lead to decision more focused on the technical aspects. However, it should be noted that so far no case law exists, that an adverse decision applies in all member states ("all eggs are put into one basket"), and that several parallel infringement or revocation actions may be preferred for risk management reasons.
Patent proprietors should make a well-considered decision whether they want to use the option to opt-out from the jurisdiction of the UPC for some or all of their European patents. Requests for opt-outs can and should already be filed during the "sunrise period"; the proprietor can "opt-in" again.