Unitary Patent System
Starting 1 June, 2023, the Unitary Patent and the Unified Patent Court will significantly impact the patent system in Europe. Some important preparations for this change can be made already now, during the sunrise period from 1 March to 31 May. One such action is to decide on any opt-out of your current European patent portfolio.
For patent applicants or owners of European patents, it is time to inventory your IP portfolio and strategise whether your patents are more suited to the classic European system or the upcoming Unitary Patent system.
There are several advantages and pitfalls to the Unitary Patent System. It exposes your portfolio to risks, while opening it up to new offensive possibilities against competitors. There is no one-size-fits-all solution. The optimal solution will be unique for each company depending on portfolio size, national coverage, portfolio age, business plan and other strategic matters.
AWA is offering an Introductory Unitary Patent Meeting to help you understand the basics of the new European patent system. This Introductory Meeting is complimentary and forms part of our Unitary Patent Action Plan.
Please reach out to your usual contact at AWA for more information on this service. Alternatively, you may contact one of the persons listed to the right.
The Unitary Patent system aims to provide easier and affordable access to effective patent protection in the European Union. Instead of a collection of national rights that require separate renewal, enforcement and in some cases translation, a Unitary Patent would be uniform and singular within participating European states, reducing cost and time implications.
A request for unitary effect does not preclude the applicant from validating the European Patent in member states which have not ratified the UPC agreement, and thus are not part of the UP system. As the UP package is exclusive for EU member states, the Unitary Patent does not prevent a European patent proprietor from using the classical validation scheme in the countries outside of the UP system. There is a definite need to perform a cost-benefit analysis, but also a risk assessment of subjecting any given patent family to the UP system.
Unified Patent Court
The Unified Patent Court will provide access to legal and technical judges and work according to streamlined procedures. It will be the common court for litigating a Unitary Patent and eventually have exclusive competence for civil litigation related to European Patents. The UPC’s ruling will be enforceable in every country that has ratified the UPC agreement, making both revocation and infringement actions a pan-European affair. However, the UPC will not have jurisdiction over nationally granted patents.
During the first seven years from when the UPC comes into effect, it is possible to waive the UPC’s jurisdiction (known as opting-out) for classic European patents and thus effectively maintain the status quo – litigation in national courts.
If a proprietor does not opt out, the UPC will acquire joint jurisdiction over the validations originating from the European patent together with national courts. In this case, proprietors and third parties alike must be prepared for litigation in either the UPC or national courts, whichever receives an infringement or invalidation action first.
For European patent applicants or owners, it will be crucial to form a strategy with regard to waiving the jurisdiction of the UPC. It will be possible to withdraw the waiver (opt-in) once. However, if an action has been brought before the UPC, opting-out is barred. Likewise, withdrawal of the waiver is barred if an action has been brought before a national court. Thus, a patent for which the jurisdiction of the UPC has been waived could be locked out of the UPC by an action before a national court.
Unitary patents cannot be opted out at any point and are under the exclusive jurisdiction of the UPC.
Early consultation, strategic benefit analysis and risk assessment provide an opportunity to get ahead. At AWA, we are ready to assist you with these critical decisions and have set up a specialist Unitary Patent Team comprising of experienced attorneys from across our European offices.
Louise JonshammarPartner, Attorney at Law
Sidsel HaugeEuropean Patent Attorney, CEO AWA Denmark, AWA Group Vice President
Niklas MattssonPartner, European Patent Attorney
David MolenaarEuropean Patent Attorney
Emmanuel JelschPartner, European and Swiss Patent Attorney
Dieter HeckPartner, European, Belgian and Luxembourg Patent Attorney