Insights: Initial thoughts after one week of the Unified Patent Court

After years in the planning, the Unified Patent Court (UPC) opened its doors for business on 1 June 2023, also bringing an end to the sunrise period for opting out European patents and applications from the jurisdiction of the UPC. Now that a week has passed, we can draw breath and reflect on our experiences so far.

As a brief summary, the UPC provides a single court for litigation of European patents across a large part of the European Union (EU). 1 June 2023 also signalled the start of the new European patent with unitary effect (Unitary Patent) – a single patent right covering multiple EU countries that falls under the exclusive jurisdiction of the UPC. Further details may be found in our guide Unitary Patents and the Unified Patent Court.

The opening of the UPC was preceded by a three-month sunrise period in which European patents and patent applications could be pre-emptively opted out from the jurisdiction of the UPC before any actions could be brought to that court. Demand for opt-outs was strong and difficulties with the UPC’s Case Management System meant that progress was slow at times, but some hard work from our UPC team saw all the required opt outs successfully filed ahead of 1 June.

In total, over 400,000 European patents and patent applications were opted out during the sunrise period, which is significantly higher than the anticipated figure of around 50,000. Nonetheless, many patents remain under the jurisdiction of the UPC. News is already emerging of the first cases filed with the UPC, and so the UPC will be getting down to work straightaway. At least initially, we expect the UPC to draw on the EPO’s case law when assessing patent validity.  However, it will be interesting to see what differences emerge over time and how the new options for multinational patent enforcement will be used.

The UPC will handle revocation and infringement actions and will also accept applications for provisional measures (such as injunctions, orders to protect evidence and inspection of premises) and protective letters (essentially a pre-emptive statement of defence against prospective applications for provisional measures).  As a leading European IP firm with patent teams in Germany and the UK, we have the expertise to advise on the full range of services relating to European and Unitary Patents, as well as the UPC. Our comprehensive experience of opposition proceedings before the EPO places us perfectly to assist with revocation actions, while our wealth of experience in building and supporting specialist litigation teams will benefit our clients involved in infringement actions.

Our UPC team, led by Partner, Neil Thomson, have followed the evolution of the Court and new legislation closely and they have been diligently helping clients navigate the changes so far. Our strength in breadth means that we have experienced attorneys across all technical disciplines able to assist clients with their UPC and European patent matters no matter what sector they operate in.