European Unified Patent system is ready for take-off
Signalling the most radical change in European patent practice, the European Union’s “unitary patent package” legislation has created a new court system in Europe.
The system provides one single Europe-wide patent (European Patents with unitary effect (EPue)), and one court (the Unified Patent Court (UPC)) for the joint enforcement of European Patents (EP) and EPue in up to 24 EU states.
UPC – The inevitable future of patent litigation
The legislation creating this UPC system will fundamentally change the way patents are granted and enforced in Europe.
Presently, patents are granted centrally by the European Patent Office but result in a bundle of national patents, which have to be enforced separately on a country-by-country basis in Europe. Such enforcement can result in increased litigation costs, delayed proceedings and conflicting decisions.
Under the new system with its new court structure, patents will be enforceable in the UPC, with decisions both on validity and infringement being binding throughout all participating Member States.
Development and current status
It began with 24 of the then 27 European Union Member States signing the Agreement on a Unified Patent Court (UPCA or UPC Agreement) on 19 February 2013.
Since then the establishment of the UPC has face many challenges, such as Brexit and constitutional complaints in Germany.
The UPC came to life on 19 January 2022 after Austria deposited its instrument of ratification of the Protocol on Provisional Application as 13th Contracting Member State.
Since then the UPC has existed as an international organisation and the Provisional Application Period (PAP), during which final preparation will be done, has started.
The PAP is expected to last about eight months. As soon as the Contracting Member States are convinced that the UPC is completely functional, the instrument of ratification of the UPC Agreement will be deposited by Germany.
On the first day of the fourth month after this deposition, the UPC will be fully in force and start operations.
Currently it is expected that the UPC will start in 2023. After a transitional period of seven years (can be extended for a further seven years), the UPC will be the only venue for litigating European Patents in the participating EU Member States.
Potential litigants need to be prepared
With the UPC system expected to start in 2023, the UPC should be a key element in all of your strategic considerations.
The UPC legislation package embodies instruments and traditions from the various civil proceedings of the Member States. The UPC Agreement provides more than 80 Articles and the Rules of Procedure of the UPC includes more than 380 Rules. These provisions will be a critical element not only in the effective operation of the new framework, but also potential litigants will need to understand this legislative background to make the best use out of it.
In particular patentees should know before the start of the Sunrise Period whether they want to opt out all or a select group of their patents from the UPC system or whether they want to make use of the new system to attack potential infringers with one centralised approach.
Our patent litigation lawyers are best-placed to support you on the UPC
With our first-class patent litigation team having specialists in both current seats of the Central Division and significant Local Divisions, as well as in Luxembourg where the Court of Appeal will have its seat, Allen & Overy is one of few leading international law firms equipped to advise litigants on navigating the new system.
Our team are available for all questions you might have regarding the UPC. They can work with you to create a bespoke UPC strategy.
In addition, we offer a wide range of UPC training courses which can be tailored to meet the needs of your firm and its staff.