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EU Unified Patent Court (UPC) and Unitary Patent

The European Union package includes two regulations that would create a European Patent with unitary effect (“Unitary Patent” or “UP”) and a Unified Patent Court (UPC) Agreement (UPCA—a treaty) that will create a Unified Patent Court.  The regulations specify that they would be effective on the same date as the UPCA on the first day of the fourth month after minimum ratification of the UPCA by 13 EU states including France, Germany and the United Kingdom. A Protocol on provisional application (“PPA”) signed on October 1, 2015 would permit some parts of the UPC Agreement to be applied on the day after the UPCA reaches minimum ratification. That will permit organizational activities before the UPCA enters into full force and the court opens, including the recruitment of judges, testing of IT systems and early registration of opt-out demands.

Currently, the necessary ratifications of the UPCA and protocols are nearly complete. However, implementation of the UPC and UP were delayed by a challenge to ratification in Germany, filed in its Constitutional Court, and the possibility that the UK would leave the EU (“Brexit”).

Although the UK has ratified the UPCA, it left the EU on January 31, 2020, before the UPCA became effective, and a UK government spokesperson announced on February 27, 2020 that “the UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.” Therefore, it appears that the UK will not participate in the system and that the remaining participating states will need to modify the UPCA and PPA to delete provisions referring to the UK and London.

If implemented, the Unitary Patent will provide patent protection in all participating EU states, and may lower translation and post-grant costs for parties electing to use it. It will be an option for European Patent (“EP”) owners, who will have the opportunity to validate their EP after grant as either a UP for the participating EU states or conventional national EP parts. The UP, however, will only be available when the EP is granted with the same set of claims for all participating states. If the UP is elected, it will still be possible to validate national parts in nonparticipating EU states and non-EU states.

If implemented, the Unified Patent Court eventually will handle all litigation involving patents issued by the European Patent Office that are validated in participating EU states, including both the regular, nationally validated European Patents and the new Unitary Patents. During an initial, transitional period of seven years, which may be extended, the UPC will have exclusive competence for Unitary Patents and will share competence for other EPs with the respective national courts. During that period the owner of a conventional EP may opt-out of UPC competence and opt-in again.

For details, see our FAQs page.

For more information, please see our EU Official Documents, Resources and FAQs pages. See the European Council’s website here for information on the progress of ratifications as they are officially deposited with the Council and reported to the Commission.

Updated March 2, 2020.