On 18 January 2022 a big step forward was made in the creation of the unitary patent and the Unified Patent Court (UPC). The unitary patent is a patent that will cover a large portion of the EU in one go. The UPC will be the court that has jurisdiction over all unitary patents and existing European patents. If patents are important to you and your company, you should keep an eye on developments taking place in the coming year because you will be faced with important decisions and fresh opportunities.
Yesterday Austria adopted the Protocol for Provisional Application. Austria is the 13th and last country needed to start the Provisional Application Period (PAP). This step enables the Preparatory Committee to set up the new European Patent Court.
The Preparatory Committee announced in a press release earlier today that the PAP will take at least 8 months. The EPO issued a similar press release today. It therefore seems realistic to assume that the new system will enter into force at the end of 2022 or beginning of 2023. The so-called 'Sunrise period' is expected to start around the autumn of 2022.
Provisional entry into force - starts today 19 January 2022
During the provisional entry into force, all the necessary steps will be taken to ensure that the UPC and the unitary patent can go ahead. That involves hiring the judges and other staff, setting up the buildings, getting the ICT systems up and running, and everything else that is needed to ensure that the Unified Patent Court (UPC) can do its work.
Start of Sunrise period - expected in the autumn of 2022
Holders of a European patent will be able to file a so-called opt-out for that patent during the Sunrise period. That way, the patent can be excluded from the jurisdiction of the new court, the UPC. This is particularly useful if you consider the UPC a risk to your valuable patents and would prefer to wait and see how things develop.
In the coming months, we will be providing you with lots of information and advice on this issue. In concrete terms, you will be receiving an overview of your patent portfolio from us a couple of months before the start of the Sunrise period together with a detailed explanation of the advantages and disadvantages of filing an opt-out. Next, we will contact you to discuss your particular situation and advise you on possible opt-outs.
Entry into force - expected at the end of 2022 or beginning of 2023
Unitary patents can be granted as of the coming into force. This means that the additional option of unitary effect will be available for every European patent application granted after this date. Put simply, a unitary patent means greater geographical coverage at a lower cost. A unitary patent automatically falls under the jurisdiction of the UPC. As of this date, legal proceedings involving unitary patents or European patents for which no opt-out has been filed can also be brought before the UPC. These could involve an infringement dispute or a dispute about the validity of a European or unitary patent, but also, for example, a dispute about ownership or licences.
In the coming months, EP&C will be providing you with further information on the ins and outs of the UPC and the unitary patent. Among other things, we will be organising a number of workshops for anyone who is interested. You can also expect an update of our white paper on the UPC and unitary patent.
If you have any questions in the meantime, please do not hesitate to contact your patent attorney at EP&C. For example, if you have an ongoing European application that you expect to be granted in 2022, and you would like to opt for a unitary patent in this case, please get in touch with us to discuss your options.
Finally: Is it now 100% certain that the UPC and the unitary patent are going to go ahead? Well, as good as but it continues to be a complex project with the inevitable challenges. However, we are assuming that this time they will make it to the finish line.