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A new European Patent System

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.

  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. As the UP automatically falls under the UPC, the judicial process will be centralised. No opt-out request can therefore be submitted in regard to a UP.

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 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 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

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

AustriaEstoniaItalyMaltaSweden
BelgiumFinlandLatviaThe Netherlands
BulgariaFranceLithuaniaPortugal
DenmarkGermanyLuxembourgSlovenia

Where do we stand now?

The implementation of the new European patent system has been delayed twice after constitutional complaints against approval were filed with the German Constitutional Court in 2017 and 2020. That Court published a ruling on July 9 2021 showing that the final formal steps for German approval can be completed. It is expected that the new system will be launched in Fall 2022, as the final stage of preparations officially began in January 2022. This final stage includes the appointment of judges.

First meeting of the Administrative Committee of the new European Patent Court

On 22 February 2022, the first meeting of the Administrative Committee of the new European Patent Court (the Unified Patent Court) took place. With this, the preparations for the establishment of the court enter a new phase. During this final phase, among other things, the judges for the new patent court will be appointed. Interviews for these started in March 2022.

The Administrative Committee consists of representatives from the 17 participating countries and is responsible for, among other things, appointing the judges and determining the precise procedural rules for litigation at the patent court. It is thus the supreme body of the new European Patent Court for all organizational issues. The first meeting marks the birth of the European Patent Court as an international organization and thus constitutes a milestone in the long genesis of the new court.

Frequently asked questions

Yes, withdrawing the opt-out is possible. However, once opted-in, it is not possible to opt out anymore, according to the draft Rules of Procedure.

The UPC could go into force in 2022 or early 2023.

It is not absolutely certain yet that the Unitary Patent system will start, let alone when exactly, although this is likely to happen by the end of 2022 or early 2023. The European Patent Office will make two transitional  measures available ahead of the entry into force of the Unitary Patent system, as of the date of deposit of Germany’s instrument of ratification of the UPCA .

The first transitional measure will allow applicants to file early requests for unitary effect before the date of entry into force of the UPC. For such requests filed in advance, “the EPO to register unitary effect immediately at the start of the system, provided all corresponding requirements are met”

Through the second transitional measure, an applicant may request a postponement of the decision to grant. The postponement can be requested after the intention to grant has been announced, but not after the applicant has approved the text intended for granting.

The postponement of the decision to grant can ensure that the European patent can still qualify for UP protection.

At present, court cases about infringement and validity are heard by the national courts of the country concerned. The introduction of the Unified Patent Court (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, except for European patents that have been opted out by the patent proprietor.

The unitary patent 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 EU countries in a single stroke.

The unitary patent will therefore be a single right extending to all participating countries. This means that the unitary patent can only be enforced in a new centralised court (the UPC). After expiry of the opposition period (9 months from the grant of the European patent), the UPC will also be the only court at which nullity proceedings can be started against a unitary patent. The decision by the UPC will have effect for all participating countries.

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