The Unitary Patent and Unified Patent Court: Preparatory phase starting

January 21, 2022

Austria’s recent ratification brings the start of the Unified Patent Court one step closer.

Preparatory work for establishing the Unified Patent Court (UPC) can finally get underway, as Austria has become the final country to ratify the Protocol on Provisional Application of the UPC Agreement. It’s anticipated that it will take at least eight months to establish the UPC and introduce the related Unitary Patent (UP).

Under the European Patent system, if you wish to obtain protection in multiple EU member states, it is necessary to validate a European patent (EP) in each relevant state. This will remain unchanged after the UPC is established.

Once the UPC has been established, there will be an additional option to validate the European Patent as a single UP, which will cover most of the EU, with the exceptions of Spain and Poland. A UP won’t cover the UK.

Obtaining a UP will therefore follow the same process as that of obtaining an EP up to grant. At this point, instead of validating in multiple individual states, it will be possible to make a single request to obtain protection in all the member states that are participating in the UPC.

The UPC will have an impact on legal actions. The UPC will apply automatically to all UPs as well as all traditional European patents and patent applications (EPs). This means that any legal action will be heard by one of the individual courts making up the UPC. It will be possible to opt-out EPs from the UPC during a transitional period.

A key decision for current patent owners is whether or not to avoid participation in the UPC by opting out granted EPs and pending EP applications.

A key decision for future patent owners will be whether to validate a granted EP in individual states or as a UP. Our experts can help you make these decisions, considering both your patent and overall business strategy. We will be in contact with our clients in due course to help them make these decisions and to help with any opt-outs.

If you’d like to know more about Unitary Patents or the Unitary Patent Court, get in touch with Elizabeth O’Leary at [email protected].