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What is a Unitary Patent?

The Unitary Patent is a pan-European patent obtained through a single registration and validation process at the European Patent Office. Unitary Patents will provide patent protection with unitary effect in every EU country that has chosen to participate in the new system. Therefore, this new type of patent will only apply in those territories that have adopted the Unitary Patent Regulations, and signed and ratified the Unified Patent Court Agreement. The Unitary Patent differs from current European patents (often referred to as ‘classical’ European patents) which are a bundle of separate national patents, effective only in the countries where they have been validated.

What is the Unified Patent Court?

A new court structure is being created to handle disputes over both Unitary Patents and classical European patents. The system will have exclusive jurisdiction over matters concerning the validity or infringement of Unitary Patents. However, businesses may actively choose to ‘opt out’ their classical European patents from litigation before the Unified Patent Court (UPC) for a transitional period of at least seven years. The UPC will have divisions right across Europe, with three central division courts located in London, Paris and Munich.

Patent filing options
The introduction of the new regime means businesses will have the option of:

Thus, the new Unitary Patent system will provide businesses with additional choice, with applicants being able to elect between the three registration options, or to mix and match between them, as best fits their business needs.

Choosing a litigation forum

The new Unitary Patent regime will bring implications for the way businesses enforce and defend their patent rights. If a business applies for a Unitary Patent then related disputes will be exclusively dealt with by the UPC.

Any disputes relating to ‘classical’ European patents that have not been opted out from the UPC’s jurisdiction, may be heard by either the UPC or national courts. The ‘opt out’ option is available during a transitional period of at least 7 years that will apply under the new regime.

For those that do opt out, disputes relating to classical European patents will be heard by the relevant national courts. Businesses that opt their classical European patents out of the UPC’s jurisdiction will have the option of withdrawing their opt outs so as to fall back within the jurisdiction of the UPC provided that no proceedings concerning those patents have been started before the national courts.

National courts will retain exclusive jurisdiction for handling cases concerning national patents regardless of the new court system.

The benefits and risks
Businesses operating in Europe need to ensure that they are prepared for the changes. The new system provides opportunities, but it is complicated and comes with issues which could bring unwanted surprises for those who are not prepared. Potential users of the system need to understand it before the Unified Patent Court is established in order that relevant and strategic choices can be made now.

Key considerations
Businesses must consider whether any granted ‘classical’ European patents should be opted out of the Unified Patent Court’s jurisdiction. If no action is taken, then by default classical European patents will be under the jurisdiction of the Unified Patent Court when it comes into existence and will, therefore, be at risk of central attack via an action brought before the new court.

Status update on the Unitary Patent and Unified Patent Court
It is intended that the EPO will issue the first European Unitary Patent as soon as the Unified Patent Court comes into existence. Whilst preparations for UK ratification of the UPC Agreement appear to be progressing, it is also necessary for Germany to ratify before the UPC can come into effect. Unfortunately, ratification by Germany is being significantly delayed by a pending case at the German Constitutional Court. Whether the Constitutional court will decide to hear the matter in full and, if so, how long that will take, is still unknown. Therefore, it is currently difficult to predict a timeline for the start of the UPC. Nonetheless, the earliest anticipated UPC start date is now in 2018. Prior to the commencement of the UPC, there will also be a ‘sunrise’ period of at least 3 months. This will allow patent proprietors to register early ‘opt outs’ for their classical European patents that they do not wish to subject to the Unified Patent Court’s jurisdiction.

The Impact of Brexit on the UPC

The UK’s decision to leave the EU previously raised questions over the implementation of the Unitary Patent (UP) and the Unified Patent Court (UPC). Nonetheless, legislation relating to the UPC was approved by the Scottish Parliament in October 2017, so UK preparations to ratify the Unified Patent Court agreement appear to be going ahead.

Article 50 of the Lisbon Treaty, which governs the procedure by which the UK will leave the EU, ensures that there will be a minimum of two years of negotiations between the UK government and the EU on the terms of the UK’s departure from the EU. Thus, the UK will not leave the EU until 2019 at the earliest. Until then, the UK will remain a member of the EU. The question of whether the UK could remain a part of the UPC and/or UP after having left the EU is being mooted.