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Coming soon: the Unified Patent Court and the unitary patent

A little while back, it was announced that the Unified Patent Court (UPC), the new European court for patents, had inaugurated its Administrative Committee and would start appointing judges any day now.

The moment that this court will be hearing its first cases and the possibility of a granted European patent being registered as a unitary patent, is therefore fast approaching.

Lawsuits on infringement and validity of European patents are currently heard by national courts (in that connection, we suggest you also read the article on patent litigation in our newsletter. However, for the participating UPC countries, the UPC will become the hub for hearing such cases. In principle, this will apply to all existing and future European patents that are or will become effective in a UPC country.

Participating UPC countries (status on 23 March 2022):
Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia Lithuania, Luxembourg, Malta, The Netherlands, Portugal, Slovenia and Sweden.

UPC to give decisions on European patents

It will be a lot easier to conduct international lawsuits under the UPC. A decision by the UPC will immediately have consequences for the patent in all UPC countries. European patents that have already been granted, will automatically fall under the jurisdiction of the UPC if the patent owner doesn’t take action. Compared to the current system, this may be to your advantage or detriment, depending on your situation as a patent owner. You may decide to maintain the current system for your existing European patent(s), which means you’ll need to file a so-called opt-out with the UPC. In that case, nothing will change, and lawsuits won’t be heard by the UPC but by the national courts only.

Once the UPC is instituted, not only patent owners will have the right to sue infringers before the UPC, but holders of an exclusive license will have that right as well. As this applies to all existing European patents, it may very well have consequences for your current license agreements too. It could be reason for you to modify your license agreements or to decide for an opt-out.

In ample time before the UPC starts, V.O. will inform clients about which patents will be falling under the jurisdiction of the UPC and indicate that an opt-out can be filed. Your patent attorney will be able to advise you on the decision you have to take and everything you’ll need to consider. If so desired, your patent attorney can also file the opt-out. Our attorneys at law are ready for assessing and, if necessary, modifying (current) license agreements.

The unitary patent

The unitary patent is not a ‘new’ patent, but an alternative to the existing validation process of a European patent. It provides the option of having a granted European patent enter into force in all UPC countries in one go. The process of assessing and granting the European patent doesn’t change in any way. In non-UPC countries the process of validating a European patent remains the same.

Simplification of the patent application process

It won’t be long before you can choose registration as a unitary patent when validating a granted European patent. That way, your patent will enter into force in every UPC country and validation in those countries will no longer be required (nor will it be possible in such cases). This simplifies the validation process enormously:

  1. Individual translations in each country will no longer be required.
  2. Annual fees for each individual UPC country are a thing of the past. The European Patent Office charges a single annual fee for maintaining the unitary patent.
  3. The unitary patent will automatically and always fall under the jurisdiction of the UPC, which centralizes any legal proceedings.

Once your European patent application has been granted, you’ll receive a letter asking you to state in which countries you wish to validate the patent and whether you wish registration as a unitary patent. Registration as a unitary patent won’t be possible until the day the UPC starts and then only for European patents granted as of that moment. During the short period preceding that moment, it will be possible to postpone the grant until the starting date of the UPC. Your patent attorney will be happy to help you decide on validation and/or postponement of the grant of your European patent.

Any questions?

A dossier providing you with more information about the UPC and the unitary patent. Naturally, you can always contact your patent attorney as well.

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Huub Maas

Huub Maas

  • European and Dutch Patent Attorney
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Gijs de Iongh

Gijs de Iongh

  • Dutch Patent Attorney
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