UP and UPC will come into force in Europe on 1st June 2023, what now?
On 1st June 2023, a single patent covering multiple EU countries, Unitary Patent (UP), and a corresponding unified court, Unified Patent Court (UPC), will be come into force in Europe. The Unified Patent Court (UPC) will also be applicable to already granted European patents.
What do you have to do?
All European patent holders are encouraged to actively assess their portfolio. We recommend that you contact us before 15th March 2023 for information and advice on how the UP system will affect your patent portfolio and IP strategy.
A UP provides cost-effective patent protection in most of the EU member states concurrently. From 1 June 2023 a European patent can be converted into a UP upon its grant. Should a UP be desired for a European patent application for which grant is imminent, it is possible for the grant of a currently pending European patent application to be postponed until after 1 June 2023 so that a UP can be used.
The introduction of the UP and UPC complicates the patent situation somewhat. Freedom to operate and conduct particular business activities in the EU may be less clear, and there may be an increased risk of patent infringement lawsuits. We therefore recommend that you contact us even if you are not the holder of European patents, for information and concrete advice in this regard.
European patents that are already granted will automatically fall within the jurisdiction of the UPC, unless they are actively opted out. This implies that the patent holder will be able to file one central patent infringement lawsuit with the UPC which applies to all UPC member states instead of raising separate claims before national courts in each individual country. The UPC member states consist of EU member states that have ratified the UPC system (17 countries to date).
Third parties will also be able to bring a single central lawsuit at the UPC on the validity of a patent. Consequently, the patent can be revoked for all 17 countries en masse, as opposed to bringing validity lawsuits before each country’s national court individually. The UPC and the UP do does not apply to European countries that are not EU members e.g., Norway, Great Britain, nor to EU countries that have not ratified the UPC (e.g., Spain, Poland). Hence, there may be a number of reasons for actively withdrawing your European patents from the jurisdiction of the UPC, preferably in good time before the system comes into force on 1 June 2023, through the so-called «opt out» alternative. An example consideration for opting out may be that you have particularly important, commercial patents. Another example consideration for opting out is if you suspect someone is considering invalidity proceedings for a patent in several countries. In such case, please contact us as soon as possible and preferably by 15th March 2023
If you have other questions or require strategic advice related to your portfolio of rights, please do not hesitate to contact us.