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THE UNITARY PATENT AND UNIFIED PATENT COURT – THE ESSENTIALS YOU NEED TO KNOW

  1. It’s radical
    The Unitary Patent and Unified Patent Court is not yet in operation. However, the changes proposed are the biggest witnessed in the European patent sector since the 1970’s. Essentially, the Unitary Patent is a new intellectual property right. It will mean that three types of patents will be available in Europe: national patents, ‘classical’ European bundle patents and new Unitary Patents.
  2. All change
    The proposed system will mean that instead of enforcing and invalidating a patent in each jurisdiction, European patents will be able to be granted with unitary effect and enforced in one action before the Unified Patent Court.
  3. Structure
    The Unified Patent Court will have jurisdiction over European patents with unitary effect, classical European patents, and Supplementary Protection Certificates. The Court of First Instance will be made up of Local Divisions, Regional Divisions and a Central Division.
  4. Act now
    Having a single system will make it easier to obtain patent protection across the majority of Europe. However, it will also make it possible to challenge patents and prevent distribution of goods across the countries involved. It is therefore imperative that businesses understand the system and take action now to avoid lost opportunities and costly mistakes.
  5. Opting out
    A key issue for existing holders of European patents is whether to opt out of the Unified Patent Court system during the seven year transitional period. It may be a prudent step for those with ‘crown jewel’ patents to opt out. By doing this the risk of EU wide (participating member states) patent revocation by a new court is removed. The opt out status could be withdrawn later to allow EU wide (participating member states) enforcement of the same patent at a later date.
  6. Unitary Patent or classical European patent?
    The answer will in part depend on the geographical scope of protection needed for the technology in question. Cost of renewal fees will naturally play a part in the decision making process. A classical European patent gives greater flexibility in terms of renewals in that some territories can be ‘dropped’ during the lifetime of the patent, with associated cost savings.
  7. When will this happen?
    The provisional timetable is that the Unified Patent Court (UPC) will be operational in December 2017, with ‘opt outs’ possible from early September 2017.