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A new European Patent System

For some time, a new European patent system has been developed that should offer a simple alternative to the current validation process while simplifying the judicial process regarding patents within Europe. The new system introduces the European patent with unitary effect and the new patent court; these elements are often referred to as Unitary Patent (UP) and Unified Patent Court (UPC), respectively. This page contains information on what the UP and the UPC will entail, and the effect of the new system on everyday practice.

It is now certain that new system will take effect on 1 June 2023; the latest preparations were completed on 17 February 2023 when Germany ratified the UPC Agreement. The 3-minute video below will give you an insight into precisely what the UP and UPC are about and their effect on day-to-day practice:

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. Therefore, the process of applying for and granting European patents will remain the same.

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. This way the patent will be immediately valid in all participating countries and the validation process will be significantly simplified.

  1. Only one translation will be required, rather than separate translations for individual countries.
  2. 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.
  3. The judicial process will be centralised as the UP automatically falls under the UPC. No opt-out request can therefore be submitted for a UP.

If you sell your UP, this will apply to all participating countries. It is, therefore, impossible 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 European patent court (the UPC) will centralise the judicial process for all participating countries at one European court. This goes for all new and existing European patents that are in force 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 directly affect the patent positions in all participating countries. Depending on your situation, this may be advantageous or detrimental compared to 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 the national courts will handle court cases.

Independent action by exclusive licence holders

The introduction of the UPC will entail a change for exclusively licensed patents because 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

The 17 countries that will participate in the UP system when it starts, are (status as of 12 July 2022):

BelgiumFinlandLatviaThe Netherlands

Where do we stand now?

The preparation of the new European patent system was finally completed when Germany ratified the UPC Agreement on 17 February 2023. The new system will definitively start on 1 June 2023.

Frequently asked questions

The Unified Patent Court (UPC) is the new European court for patents created by the UPC Agreement (UPCA). The UPC will have exclusive jurisdiction in respect of European patents and unitary patents. Currently, court cases about the infringement and validity of European patents are heard by the national courts of the countries concerned. The UPC will centralize the judicial process at a single European court for all countries that have ratified the UPCA (the UPC countries). The decision of the UPC is binding in all UPC countries. The UPC also has jurisdiction over all existing and future European patents that are in force in one or more of the UPC countries, except for European patents that have specifically been opted-out of the UPC jurisdiction at the request of the patent proprietor(s). Such opted-out European patents will fall under the jurisdiction of the national courts. The UPC will share the competence with respect to European patents (without unitary effect) with the national courts during a transitional period of 7 years. Parties have choice of forum during this period, and patent holders have the possibility of removing their European patent from the jurisdiction of the UPC (see opting-out).

The European patent with unitary effect or, shortly, the unitary patent is an alternative to the existing process of validating a European patent in individual countries. It is therefore not a ‘new’ patent, but an option to extend the validity of a granted European patent across all UPC countries in a single stroke.

The unitary patent is a single (indivisible) legal title extending to all UPC countries. This means that the unitary patent cannot be transferred in part. This also means that the unitary patent can only be enforced in a centralized court (the UPC). The UPC will also be the only court where a holder of a unitary patent can start an infringement case. Within the opposition period (9 months from the grant of the European patent), third parties can request revocation of the unitary patent before the EPO. After the expiry of the opposition period, the UPC will also be the only court where revocation proceedings can be started against a unitary patent. A decision of the UPC will have effect for all UPC countries.

The European Commission considers patents a vital element of the Internal Market to achieve growth through innovation and increase the international competitiveness of European business. It considered that the efficiency, affordability and legal certainty of the patent system should be enhanced. Thereto, a pan-European patent protection and dispute settlement was to be created, based on two pillars: a European Union patent (the unitary patent) and a unified jurisdiction for patent disputes (the UPC).

The UPC and the unitary patent system will start with the entry into force of the UPC Agreement. The UPC will start 1 June 2023.

Since 1 January 2023, applicants can request a delay in issuing the decision to grant a European patent, so that the patent will be granted after the new system has come into force. By filing such a request, the unitary effect will be available for the European patent.

An early request for unitary effect may also be filed for European patent applications.

The sunrise period offers patentees a chance to opt-out of the UPC before competitors can initiate a central revocation action before the UPC with the associated risk that the European patent is revoked by a single decision in all UPC member states. Opt-out requests can be filed from 1 March 2023.

The following UPC countries will participate in the new system when it starts:

Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Portugal, Slovenia and Sweden.

Countries that can participate in the UPC Agreement must be EU member states. On 19 February 2013, 24 EU member states signed the Agreement. The UPC-UP system will start 1 June 2023.

Several signatory states have not (yet) ratified the Agreement. These include Czechia, Ireland, Greece, Cyprus, Hungary, and Slovakia. These may still become UPC countries at a later stage.

Some EU member states (e.g. Spain, Poland) have not signed the UPC Agreement and are not participating.

Non-EU countries cannot participate, regardless of whether they are participating in the European Patent Convention (EPC) or not. These include the United Kingdom, Norway, Switzerland, and Turkey. Following Brexit, the UK is no longer an EU member state.

For patent proprietors it will be easier to enforce a European patent, because this can be achieved in all UPC countries through a single court case. A UPC judgment will directly affect the patent in all UPC countries. Depending on your situation, this may be advantageous or detrimental compared to the current system wherein national courts decide on patent matters.

During a transitional period of 7 years, you may choose the (continued) applicability of the current national court system for your European patent(s). In that case, you must submit a so-called opt-out request with the UPC for those patents that are to be excluded from the court’s jurisdiction. In that case nothing will change and court cases will be handled only by the national courts.

In most contracting member states, a branch of the UPC will be present in the form of at least one Local Division. Local divisions will be present in Vienna, Brussels, Copenhagen, Helsinki, Paris, Düsseldorf, Hamburg, Mannheim, Munich, Milan, Lisbon, Ljubljana, and The Hague.

A Regional Nordic-Baltic Division will be present in Stockholm. This Division will hear cases from Sweden, Estonia, Latvia and Lithuania while each country will also designate facilities for hearings in their own country.

Paris, Munich and possibly Milan will house the three Central Divisions. Before Brexit, London was the Central Division’s third seat and would hear cases involving patents in the field of IPC class (A) Human necessities (pharmaceuticals) and (C) Chemistry. These cases will now likely be heard initially in Paris and Munich. In Munich, cases involving patents in the field of IPC class (F) mechanical engineering are heard. The Paris Central Division will hear cases in all other fields of technology. The above are all courts of First Instance. A Court of Appeal will be seated in Luxembourg.

Depending on the legal question, the Courts of First Instance and the Court of Appeal of the UPC will apply

– European Union law (the “Unitary Patent Regulation” Regulation (EU) No. 1257/2012, and the “Translation Regulation” Regulation (EU) No. 1260/2012);

– the Agreement on the Unified Patent Court (UPCA);

– the European Patent Convention (EPC);

– other international agreements applicable to patents and binding on all the Contracting Member States (e.g. TRIPs).

National law will only play a minor role in UPC proceedings.

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