Insights: The Unitary Patent is coming

The European Unitary Patent is slowly entering the home straight. The Federal Constitutional Court in Germany rejected the constitutional complaint against the Approval Act, and the Approval Act was passed by the German Bundestag with the required two-thirds majority at the second attempt. Consequently, in September, Germany ratified the Protocol on the Provisional Application of the Unified Patent Court (UPC) Agreement. It is expected that with one further ratification of this Protocol by another country, the minimum number of countries will soon be reached and the preparation for the establishment of the UPC can enter the final stages. In addition to the technical preparations, it will also be necessary to clarify where the branch seat of the UPC, which was previously planned to be in London, should now be located.

The final process of entry into force is to be initiated by the purely formal ratification of the UPC Agreement by Germany only when it is clear that the preparations for the establishment of the UPC have been completed. The entry into force of the UPC Agreement is set for the first day of the fourth month after the necessary ratifications. Only Germany’s ratification is still missing, so it is ultimately in the hands of Germany to finally trigger the entry into force.

Despite the remaining imponderables, it is expected that the UPC Agreement will finally enter into force in late 2022 or early 2023 with an operational UPC. This will mark the end of a process that has lasted almost 50 years. It will then be possible to validate a European patent as a Unitary Patent across the majority of the EU, if desired.

We will keep you informed about the practical significance of the Unitary Patent and the UPC for patent applicants and owners. In particular, we will inform you about the strategic advantages and disadvantages of “opting-out” existing patents from the jurisdiction of the new UPC – such opt-outs will be possible during a transitional period before entry into force of the UPC Agreement.

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