The introduction of the Unified Patent Court (UPC) and the unitary patent is expected to take
place on 1 June 2023, as matters stand.
The unitary patent is a European patent with unitary effect in the participating EU member
states. The Unified Patent Court will deal with infringement and invalidity jointly for the
participating states and will take its place alongside existing national courts.
The filing and grant procedure of a European patent application remains as it is and is
conducted entirely before the European Patent Office (EPO).
To obtain a unitary patent, the request for unitary effect must be filed no later than one month
after publication of the notice of grant of the European patent. This then leads to a combined
protection of unitary patent in the available countries and the conventionally validated parts
of the EP patent in the other countries of the EPC.
The applicant must therefore decide whether
A request for unitary effect will be eligible for the following EU member states: Austria,
Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania,
Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden. For all other EPC
member states (including validation and extension states), the previous validation procedure
remains in place. Further information is available at
https://www.unified-patent-court.org/en
For those EP-applications for which unitary effect is under consideration but which are
expected to be granted before the entry into force of the UPCA, either an early request for
unitary effect or a request for delay of the decision on grant may be filed (so called “sunrise
period between 1 January 2023 and 31 May 2023). The prerequisite for such requests is the
existence of a communication under Rule 71(3) EPC.
The Unified Patent Court handles infringement or invalidity for all participating EU states
together. The Unified Patent Court joins the already existing national courts which deal with
infringement and invalidity only for the respective country. The Unified Patent Court will have
jurisdiction for unitary patents and for conventionally validated parts of EP patents still to
grant. However, the applicant may file an opt-out request for conventionally validated parts of
EP patents, so that the national courts will retain jurisdiction for infringement and invalidity for
the EP patents for each country individually. There is no provision for an opt-out request for
unitary patents.
If the Unified Patent Court has jurisdiction, infringement or invalidity will be decided jointly for
all countries. Such an infringement decision with unitary effect in all countries can be a
significant advantage for the applicant, while an invalidity decision with unitary effect in all
countries can be a great loss for the applicant.
When an opt-out is requested, national courts retain jurisdiction separately for each country.
This means that an infringement decision for a single country is not as far-reaching, while an
invalidity decision for a single country is not as dangerous. The Unified Patent Court could be
selected only for very strong patents and opted out for all other patent applications and
patents.
In this respect, please let us know as soon as possible whether you are interested in a
Unitary Patent. We will be pleased to advise you in detail.
