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The Unified Patent Court (UPC) will begin operating - what changes?


The European patent system changes on June 1, 2023, when registration of Unitary Patents (UP) begins and the new Unitary Patent Court begins its operations. One result is a substantial change in patent litigation. European patent attorney Stefan Holmström explains what patent proprietors should know.

The Unified Patent Court (UPC) which becomes operative in early June, is part of a new European unitary patent system which facilitates protection of an invention with a single patent in 17 EU countries. These countries are Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden.

The change applies to patent applications prosecuted at the European Patent Office (EPO) and for which the EPO has granted a patent. This European patent will come into force in those countries where it is registered within a specific timeframe. Traditionally this registration has been made as country specific validations. Now, in addition to the country specific validations a new possibility will be available, which is to register the European patent with a single Unitary Patent into the 17 participating countries.

UPC creates uniform legal practice

A key part of the unitary patent system is the Unitary Patent Court, which will change dispute resolution. In the new system, all disputes related to Unitary Patents are resolved by the Unitary Patent Court in a centralized process and judges from more than one country always participate in the proceedings. This should ensure that a uniform legal praxis is obtained. The court's decision covers all 17 countries. Previously disputes relating to country specific validated European patents have been resolved separately in each country's national court and according to national legal practices, due to which no common legal praxis has been established.

Language issues are likely to be a challenge in the court proceedings, as the European patent may have been granted in a different language than the language used in the court proceedings. In addition, the material discussed in the proceedings may include documents in several different languages.

In which court will disputes relating to old European patents be resolved?

As a part of the reform, the Unitary Patent Court becomes a competent court to make decisions on infringement and invalidity issues of old, previously validated European patents as of 1 June 2023. Due to this, the reform is significant also for proprietors of old European patents in any of participating countries.

Selection between UPC and a national court?

The start of the Unified Patent Court forces patentees to make a decision. Do they want to maintain the old solution where only national courts can country by country make decisions regarding their validated European patents, or do they want that the Unified Patent Court can make decisions regarding them.  The decision is important. If a patent holder has not opted out their validated European patent from the Unified Patent Court, a competitor may start a centralized revocation process in the Unified Patent Court for the participating countries in case of a dispute.

Opt-out for validated European patents

Since beginning of March, patent proprietors have been able to request that their validated European patents and published European patent applications are opted out of the Unified Patent Court.

By submitting an opt-out request, it can be ensured that infringement and revocation proceedings related to old and also future validated European patents will be resolved solely by national courts as previously. The request must be submitted before a competitor files a lawsuit in the Unified Patent Court and no later than seven years after the system starts operating.

Opt-out requests cannot be made for Unitary Patents. Disputes related to them will always be handled solely by the Unified Patent Court.

It is important to note that a proprietor who has submitted an opt-out request cannot initiate a centralized infringement process against a competitor in the Unified Patent Court. However, the proprietor has a backdoor option. If the competitor has not yet filed a lawsuit in a national court, the proprietor can withdraw the opt-out request so that a dispute process can be initiated in the Unified Patent Court.

Are you wondering how the Unitary Patent and the Unified Patent Court will affect your patent? Are you considering patenting your invention, would you like to evaluate its patentability, or do you suspect that your IP rights have been infringed? Contact us!