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Unitary Patent and Unified Patent Court

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The proposed 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 would create a Unified Patent Court. 

The Unitary Patent 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 would 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.

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

If implemented, the Unified Patent Court eventually would 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 would have exclusive competence for Unitary Patents and would 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.

Status

Currently, the necessary ratifications of the original 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”). Further delays may occur both because of Brexit and because of the COVID-19 pandemic.

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.” On July 20, the UK formally withdrew its ratification of the UPC Agreement and the Protocol on Privileges and Immunities (PPI), and its consent to be bound by the Protocol on Provisional Application (PPA). See here. Therefore the UK will not participate in the system and the remaining participating states will need to address the UPCA provisions referring to the UK and London.

Although the German Constitutional Court has decided that the German parliament’s ratification vote was procedurally invalid, that does not appear likely to cause delay beyond that caused by Brexit and the UK’s withdrawal of its ratification of the UPCA.

For details on the status of the UP and UPC, see FAQ 9 on our FAQs page and our Chronology page. 

For more information of the proposed package, please see our other pages listed below.

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 July 24, 2020

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