The unitary patent and the unified patent court
The Agreement on a Unified Patent Court (UPC Agreement) has been signed by 24 EU Member States.
The UPC Agreement is currently in force in the 18 states that have ratified it.
The remaining six EU Member States that have signed but not yet ratified the UPC Agreement may ratify it at any time. Furthermore, EU Member States that have not yet signed the UPC Agreement may accede to the Agreement at any time.
On 1 June 2023, the Unified Patent Court (UPC) commenced operations. It is now also possible to obtain a unitary patent.
The unitary patent is a European patent with unitary effect in the participating EU Member States. The Unified Patent Court will handle infringement and invalidity proceedings jointly for the participating states and operates alongside existing national courts.
The filing and grant procedure for a European patent application remains unchanged and is conducted entirely before the European Patent Office (EPO).To obtain a unitary patent, the request for unitary effect must be filed no later than one month after publication of the notice of grant of the European patent.
Combined protection comprising a unitary patent in the available countries and the conventionally validated parts of the EP patent in the other EPC countries is possible.
The applicant must therefore decide whether
an EP application is to be granted automatically as a conventional EP patent and validated in the desired countries and/or
a request for unitary effect is to be filed.
For the EU Member States listed below, the option to file a request for unitary effect will be available upon the entry into force of the UEP: Austria, Belgium,
Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden. For all
other EPC member states (including validation and extension states), the existing validation procedure will remain in place. Further information can be found at
https://www.unified-patent-court.org/en
The Unified Patent Court will handle infringement or invalidity proceedings for all participating EU Member States collectively. The Unified Patent Court will operate alongside the existing national courts, which deal with infringement and/or invalidity only for their respective countries. The Unified Patent Court will have jurisdiction not only over unitary patents and conventionally validated parts of EP patents yet to be granted, but also over EP patents that have already been granted, unless the applicant files an opt-out request, in which case the national courts will retain jurisdiction over infringement and invalidity for the EP patents on a country-by-country basis. No opt-out application is provided for unitary patents.
Where the Unified Patent Court has jurisdiction, infringement or invalidity is decided jointly for all countries. Such an infringement decision with unitary effect in all countries can be a significant advantage for the applicant, whilst an invalidity decision with unitary effect in all countries can be a major loss for the applicant.
If an opt-out is requested, the national courts retain jurisdiction separately for each country. This means that an infringement decision for a single country is not as far-reaching, whilst a revocation decision for a single country is not as dangerous. The Unified Patent Court could be selected only for very strong patents and opted out of for all other patent applications and patents.
