Unified Patent Court and Unitary Patent Moving Ahead in Europe

Fish & Richardson

Final preparations by sixteen EU member states for their Unified Patent Court (UPC) and Unitary Patent (UP) began on 19 January 2022, following Austria’s deposit on the previous day of its ratification of the Protocol on Provisional Application of the UPC Agreement (PPA). The PPA permits the organization of the UPC before it opens to accept cases, including establishment of its Administrative, Advisory and Budget Committees, hiring of judges and staff, etc. The new court is expected to open in late 2022 or early 2023.

Poland and Spain have not signed the UPC Agreement and currently do not plan to participate in the UP and UPC. Croatia joined the EU after the Agreement was signed. Seven additional EU member states have signed the UPC Agreement, but have not yet ratified. Those states and Croatia may participate in the UP and UPC later.

The UPC will be a single court with a first instance central division in Paris and Munich, alternative first instance divisions in participating states, and a court of appeals in Luxembourg. It will have exclusive jurisdiction for litigation involving Unitary Patents and parallel jurisdiction with national courts for conventional European Patents, unless the conventional patent owner opts-out of the UPC.

Starting on the day the UPC opens, a Unitary Patent will be available from the European Patent Office for all of the participating states. There will be no change in patent application procedure at the EPO before grant. EPO applicants will have a choice at grant between validation as individual national patents or as a European patent with unitary effect (Unitary Patent) for participating states. The Unitary Patent will be a single patent, enforceable at the UPC for all UPC member states. Advantages of the Unitary Patent will include no validation fee at grant, reduced cost of translation at grant, a single annual maintenance fee—payable to the EPO—approximately equal to the sum of maintenance fees of France, Germany, Italy and the Netherlands, and freedom from attack in national courts.

Practice Tips:

  • It will soon be time to develop strategies for deciding whether or not to obtain Unitary Patents, and whether or not to opt out of the UPC for existing and future, conventional European Patents.
  • Persons desiring a Unitary Patent may want to consider delaying the grant of some European Patents until the Unitary Patent is available.
  • For more details regarding the Unitary Patent and UPC, see our webpages here.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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