Major changes to the way European patents are dealt with are coming. These changes affect granted European patents as well as new applications.<\/p>\n
A new type of European patent, commonly referred to as the \u201cUnitary Patent\u201d (\u201cUP\u201d), will soon be available. The Unitary Patent will allow a single patent to have effect in every participating European country, without the need to \u201cvalidate\u201d the patent in individual countries, as is currently required to give effect to a \u201cclassical\u201d European patent.<\/p>\n
Along with the Unitary Patent, a new Unified Patent Court (\u201cUPC\u201d) will be set up to hear cases relating to Unitary Patents.<\/p>\n
The UP and UPC are expected to come into force in late 2022 or early 2023.<\/p>\n
The UPC will be the only court with jurisdiction to hear Unitary Patent cases. The UPC will also be available for cases relating to existing \u201cclassical\u201d European patents during a transitional period of at least 7 years. Such a case may be initiated by the patent owner (e.g. to sue for patent infringement), but could also be initiated by a competitor (e.g. an application for revocation).<\/p>\n
Once any action is taken in the UPC in relation to a patent, that patent is irrevocably committed to the jurisdiction of the UPC, even if this is contrary to the patent owner\u2019s wishes.<\/p>\n
A UPC ruling will have effect in the territory of every \u201cMember State\u201d which has ratified the UPC Agreement. All European Union states except Croatia, Poland and Spain are Member States, although not all have ratified the agreement yet.<\/p>\n
With the UK withdrawing from the EU (so-called \u201cBrexit\u201d), the UK will not be part of the agreement.<\/p>\n
It will be possible for the owner of a classical European patent to \u201copt out\u201d of the UPC\u2019s jurisdiction over the patent provided no action has been filed with the UPC (by the patentee or a competitor) beforehand.<\/p>\n
To ensure that patentees have a chance to determine whether or not their existing patents fall within the UPC, a three month \u201csunrise\u201d period will be available before the UPC commences, during with patentees can opt out of the UPC system.<\/p>\n
If no opt-out is registered during this sunrise period, it is possible that a competitor could apply to the Unitary Patent Court to have an existing European patent revoked. If successful, this would have the effect of revoking the patent in every Member State which has ratified the agreement.<\/p>\n
It is possible to withdraw an opt-out (i.e. to opt back in to the UPC) during the transitional period, provided no action has been taken before a national patent court (either by the patentee or a competitor).<\/p>\n
There are several reasons why it might be desirable to opt out of the UPC as soon as this becomes possible:<\/p>\n
However, reasons for not opting out include:<\/p>\n
Owners of European patents need to consider whether to opt-out of the new Unified Patent Court. If no action is taken to opt out, the patent may be vulnerable to central revocation when the new system comes into force. The patentee will no longer have the option of opting out of the Unified Patent Court if a competitor files an action in that court.<\/p>\n
Please get in touch with us if you wish to discuss the new European patent system. We will contact clients with European patents when the implementation date of the UPC is confirmed to discuss the best strategy for their business.<\/p>\n
<\/p>\n","protected":false},"excerpt":{"rendered":"
Major changes to the way European patents are dealt with are coming. These changes affect granted European patents as well as new applications. A new type of European patent, commonly referred to as the \u201cUnitary Patent\u201d (\u201cUP\u201d), will soon be available. The Unitary Patent will allow a single patent to have effect in every participating…<\/p>\n","protected":false},"author":8,"featured_media":2175,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"content-type":"","footnotes":""},"categories":[62],"class_list":["post-4031","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-patents","insight-resource-articles"],"acf":[],"yoast_head":"\n