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Introducing The Unified Patent Court and Unitary Patent in the European Union

Posted on Mar 7, 2023 in Blog

The European Union (EU) is establishing a Unitary Patent Court (UPC) and Unitary Patents (UPs) effective June 1, 2023.

A UP will be an alternative option to a classical European patent (EP), which is a bundle of individual national patents that take effect only in member states of the EU in which the patentee has proceeded through validation. Rather than requiring national validations of European patents on a country-by-country basis, a UP will be an enforceable patent in every participating member of the EU.

The UPC will have jurisdiction to litigate UPs throughout the EU and will have authority to, e.g., invalidate patent rights in all EU countries.  Currently, European patents are litigated on a country-by-country basis only where they have been nationally validated.

Existing EPs will be subject to the jurisdiction of the UPC on June 1, 2023 unless the owners opt-out before then. Opting out has the effect that the EP will remain subject only to the jurisdiction of the national courts of the countries in which the EP was validated.  The opt-out “Sunrise Period” began on March 1, 2023 and ends on June 1, 2023 which allows EP patent owners the ability to opt-out before the UPC agreement even goes into effect on June 1, 2023.  An opt-out request will last for the lifetime of the patent unless the opt-out is withdrawn.  An EP owner’s ability to opt-out of the UPC will continue to be available during a seven-year “Transitional Period” following the Sunrise Period as long as no UPC proceedings have been initiated against the EP.

If you want to avoid a single court having the authority to invalidate your patent(s) throughout the entire EU, we recommend opting out as early as possible.

On the other hand, if you want to expand the scope of your patent protection across the EU, there is no need to opt-out.  This would enable you to enforce your patent rights across the EU in a single court.

Applicants having pending patent applications allowed before June 1, 2023 will have the option of requesting to delay the issue of the Decision to Grant until after that date so as to have the patent issue as a UP rather than as an EP.  The annuity payments due annually to maintain the UP in force will be similar to the annuity costs for national validations in four EU countries. Thus, for patent owners with national validations in four or more countries, UPs might extend their rights across the EU at no additional cost.

– By Scott M. Slomowitz


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