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 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:
- The Netherlands
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.
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Frequently asked questions
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.
Under the UPC, it will be easier to enforce 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 in all participating countries. Depending on your situation, this may be advantageous or detrimental in comparison with the current system of national courts deciding on patent matters.
You can opt for (continued) applicability of the current system to your European patent(s). In that case, you must submit a so-called an opt-out request for your European patent(s), so that nothing will change and court cases will be handled by the national courts only.
The process of applying for and granting European patents will remain as it is.
Thus, you should apply for a European patent via the European Patent Office (EPO). Once the European patent is granted, you should then register (validate) the European patent as a unitary patent. Registering as a unitary patent will be possible starting from the date of entry into force of the UPC agreement. Registration is possibly by filing a request for unitary effect.
It should be noted though that the patentee will only have one month from date of publication of the mention of the grant in the European Patent Bulletin to file the request for unitary effect with the EPO. A translation of the entire patent will have to be fled as well within that term.
The following states are expected to 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.
Thus, some EU countries (e.g. Spain, Poland) are not participating.
Non-EU countries cannot participate, regardless whether they are participating in the European Patent Convention (e.g. United Kingdom, Norway, Switzerland, Turkey) or not.
No, this is not possible. However, the UPC will be available for existing European patents if no opt-out is selected.