For some time, a new European Patent System is being developed that should offer a simple alternative to the current validation process while simplifying the judicial process regarding patents within Europe. The two elements, the European patent with unitary effect and the patent court, are often referred to as Unitary Patent (UP) and Unified Patent Court (UPC) respectively. This page contains information on what exactly the UP and the UPC will entail, and on the effect of the new system on everyday practice. At present, it is not clear yet when the new system will take effect; up-to-date information on this point can be found at the bottom of this page.
The Unitary Patent (UP)
The UP is an alternative to the existing validation process of a European patent in individual countries. It is therefore not a ‘new’ patent, but an option to extend the validity of a European patent granted across all participating countries* in a single stroke. The process of applying for and granting European patents will remain as it is.
What will the UP mean for you?
As soon as the new patent system takes effect, you can opt for registration as a UP instead of registration in individual countries when validating a European patent. In this way, the patent will be immediately valid in all participating countries, and the whole validation process will be greatly simplified.
- Only one translation will be required, rather than separate translations for individual countries.
- The European Patent Office will annually charge one amount for the maintenance of the UP in the participating countries, meaning that no more annual fees will be owed in individual countries.
- As the unitary patent automatically falls under the UPC, the judicial process will be centralised. No opt-out request can therefore be submitted in regard to a unitary patent.
If you sell your UP, this will apply to all participating countries. It is therefore not possible to sell a UP on a per-country basis. However, licences can be granted per country or region.
The Unified Patent Court (UPC)
At present, court cases about infringement and validity are heard by the national courts of the country concerned. The introduction of the UPC will centralise the judicial process for all participating countries. This goes for all new and existing European patents applicable in one or more of the participating countries.
What will the UPC mean for patent holders?
Under the UPC, it will be easier to maintain a European patent, because this can be achieved in all participating countries through one court case. A judgment will have direct consequences for the patent positions in all participating countries. Depending on your situation, this may be advantageous or detrimental in comparison with the current system.
You can opt for (continued) applicability of the current system to your European patent(s). In that case, you must submit what is known as an opt-out request for your current European patent(s), so that nothing will change and court cases will be handled by the national courts.
Independent action by exclusive licence holders
The introduction of the UPC will entail a change for exclusively licensed patents, in that the holder of an exclusive licence will be able to act independently against infringers before the UPC. Since this will apply to all existing European patents, it may also affect your current licence agreements. For this reason, you may wish to adjust your licence agreement or submit an opt-out request.
* Participating countries
Where do we stand now?
After the German Constitutional Court had ruled earlier in 2020 that the introduction of a bill on the approval of the UPC was unconstitutional , the German Bundestag (cf. House of Representatives in the Netherlands and House of Representatives in Belgium) passed the law on 26 November 2020. The approval by the Bundesrat (cf. Senate) was effected on 18 December 2020. The next steps are signature of the law by the Federal President and publication of the law in the German Official Gazette.
According to the European Commission, it would now be possible for the UPC and the UP to become operational in 2022. This would mean that in the course of 2021 the period would begin – the so-called sunrise period – for which existing European patent rights can be used under the opt-out arrangement. As a result, they will continue to be covered by the current system and any court cases will be heard through the national courts.
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