The arrival of the unitary patent and the Unified Patent Court (UPC) represent the biggest changes in European patent law in a generation. Proprietors of European patents and pending European patent applications need to make important decisions about how to handle these changes in view of their effects on granted and pending patent rights.
These changes have been in the pipeline for a number of years. German ratification, which is expected in December 2022, will determine the date when the legislation comes into force. The latest roadmap indicates that the legislation will come into force on 1 April 2023.
A unitary patent will be a single patent which will have effect in several countries which are members of the European Patent Convention (EPC) and the European Union (EU).
The Unified Patent Court will be a new international court for patent litigation. Litigation of unitary patents will take place solely at the UPC. The UPC will also have jurisdiction over national validations of European patents in affected countries unless those patents have been opted out.
Not all of the 39 EPC member states will be affected. Initially, it is expected that the changes will take effect in 17 countries including France and Germany. However, the new laws will not apply to the UK, Spain or Switzerland, amongst others.
How will the Unitary Patent and the Unified Patent Court affect my patent portfolio?
There are two separate issues for patent applicants and patentees to consider:
- The Unitary Patent: this is only relevant for patents which grant after the legislation comes into force.
- The Unified Patent Court: this affects pending applications AND has a retrospective impact upon European patents which have already been granted. Supplementary protection certificates (SPCs) for pharmaceutical inventions are also affected by the law changes. Assuming German ratification in December 2022, the 3-month sunrise period for opting out nationally validated European patents from the jurisdiction of the UPC is scheduled to begin on 1 January 2023.
We welcome queries from our Australian and New Zealand clients regarding the unitary patent and the UPC. We would be happy to discuss what these changes mean for you and assist you with managing your IP portfolio in view of the changes.
This article is intended to provide general advice. Deciding if unitary patent protection is the right choice and whether or not to opt out a European patent or patent application from the UPC are commercial decisions which will depend on the specific circumstances.