The Unified Patent Court (UPC) started its operation on 1 June 2023. Further,
it is now possible to obtain a unitary patent.
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.
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.
