Until now patents in Europe have been granted by national patent offices or by the European Patent Office (EPO). However no true unitary “European patent” has existed. Rather, the “European patent” is in reality a bundle of national patents, requiring individual renewal, and country-by-country litigation.
A new system will soon come into being, establishing a Unitary Patent (UP) and a Unified Patent Court (UPC).
Most European Union (EU) countries have joined. However Spain has stayed out. The UK has joined, but will leave the EU presently.
Patents will be granted by the European Patent Office (EPO), operating under its current law and practice. When the EPO grant a patent there will now be a new option: to hold a Unitary Patent (UP). However the current type of “EP patent” can still be taken, if preferred.
National patent filing options are unaffected.
The new Unified Patent Court (UPC) will handle all litigation arising from UP cases. Non-unitary European Patents (EPs) and supplementary protections certificates (SPCs) will be subject to both the jurisdiction of the UPC and of the national courts; but the UPC jurisdiction can be opted-out of, for a transitional period of at least 7 years.
The judgements of the UPC will be binding throughout all participating states of the UP system.
The UPC will have divisions in London, Munich, Paris and in other European cities. Where an action is heard depends on the technical subject matter and the locations of the parties.
There will be a three-month “sunrise period” before entry into force, for optionally opting-out existing EP patents/applications from the jurisdiction of the UPC.
The start date is not set but we just await ratification by Germany. Commencement in 2019 is widely expected.
Patent applicants need to be ready for the start of the system and to decide, broadly, whether they want to go with the UP/UPC system or whether to make use of the measures to avoid it, perhaps until it settles down.
For more information about options and planning please see our more detailed note An Overview of the Unitary Patent & Unified Patent Court.
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1 December 2016 Two weeks after the shock referendum result on Brexit, Pippa Allen attended the Munich Conference: ‘Unified Patent Court and Unitary Patent: the final steps?’. With the UPC facing atLearn more
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