Last month an announcement appeared on the UPC website stating that “the previously announced target date for the entry into operation of the UPC, envisaged for December 2017, cannot be maintained.” One factor is thought to be the UK election that was suddenly called in April and held in early June.
A challenge to the agreement has also been launched in the German constitutional court, as a result of which the German government has now halted progress on the legal work necessary for it to ratify the UPC Agreement.
It is now hoped that the UP and UPC will start in the first half of 2018.
In spite of the delay, it is still a good time to investigate the pros and cons of the new system and consider whether or not you would like to obtain a UP from your pending European patent applications.
Advantages of a UP
1. Potential cost savings
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- Issued by the European Patent Office by ticking a box (no fee payable)
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- No national validation required
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- One translation required initially
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- No translation required eventually
- A single renewal fee for a much larger proportion of countries (expected 19 at start including the UK, Germany, France, and Italy)
2. Uniform legal effect across the countries covered by the UP
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- Infringement
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- Revocation
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- Remedies (injunctions, damages)
- Transfer of ownership
Disadvantages of a UP
1. Less flexibility
- The renewal fee increases progressively each year and you won’t be able to drop particular countries with time to decrease the amount of renewal fees payable each year.
2. Can be enforced and revoked via the UPC only
- The UPC is an untested system
- It is all or nothing – central enforcement versus central revocation of the UP
3. Uncertainty surrounding whether a UP will include the UK after they leave European Union in March 2019.
- However, it is thought that transitional provisions will ensure holders of a UP do not lose protection in the UK. For instance, the provisions may provide that a UP covering the UK may be turned into a UK national patent post-Brexit.
In summary, a UP is likely to be the best option for pan-European protection due to the cost savings and reduced translation requirements.
On the other hand, if you only desire protection in up to 4 countries including the major jurisdictions (UK, France, and Germany) then you may be best to stick with the existing validation system and litigate in the national courts.
For more information, please contact us.