2023 is an important year when it comes to patents. This also in particular applies for patents within the high-tech sector, which is made up of lots of start-ups and larger-size businesses. This is because from 1 June 2023 the Unitary Patent and the Unitary Patent Court (UPC) will come into effect. In this blog I will explain what is going to change and what actions you will need to take if you are a patent holder.
The changes explained - the Unitary Patent
This year two important interrelated changes are taking place. The first is the advent of the Unitary Patent. The second is the creation of the Unitary Patent Court. We will start with the Unitary Patent.
Under the current system patents are granted by the European Patent Office (EPO) and it is possible to choose in which participating European countries you want to validate your patent. In other words; in which countries you want protection for your innovation. In those different countries you will have to pay fees and often also costs for translations of, for example, the claims in your patent.
With the advent of the Unitary Patent the process of applying for a patent will remain the same but when the patent is granted you will be able to opt for a Unitary Patent. This will give you protection in all 17 countries that are party to the Unitary Patent Treaty by completing one formality and paying a single fee. In short you will get relatively cheaper protection in a larger territory.
The changes explained - the Unitary Patent Court
With the advent of the Unitary Patent, the Unitary Patent Court will also start. Currently if you suspect that someone is infringing your patent or if someone else thinks you are infringing theirs you will go to the national court. So in the case of an infringement in Germany you will have to go to the German court and in the case of an infringement in France you will have to go to the - you guessed it - French court. This is a complex and expensive system. Judges in different countries may even reach different verdicts.
This will all change from June this year. There is going to be a central court, the Unitary Patent Court (UPC). It will have jurisdiction to adjudicate on infringements and validity throughout the patent territory. Incidentally, for patents granted under the current system, you, as a patent holder, can either opt-in or opt-out. You can read more about this in my tips.
The advantages of the Unitary Patent and the UPC
These changes have major advantages for both start-ups and larger companies in the high-tech sector. It will be cheaper to challenge infringements because this can be done at a single court - the UPC. So you have more clout and will be able to tackle infringers across the whole territory.
There are many start-ups in the high-tech sector. Their budget is often limited but they very much want a patent as it increases the value of their company and makes them more attractive to investors. On top of that 'patent pending' is an important marketing tool.
Larger companies in the high-tech sector often operate globally. Now that it is going to be cheaper to protect innovations in Europe it is going to be interesting for these companies to devote a large part of their budget to Europe. After all, it is going to cost less here to get protection in more countries.
However...
There are two sides to every coin. This is because your competitors are going to have the same benefits from the Unitary Patent and the UPC as you have. It will become easier for them too to claim rights in more European countries through the Unitary Patent and it is also going to become easier for them to enforce them through the UPC. The UPC also has jurisdiction to rule on the validity of a patent. If the validity of your patent is challenged at the UPC and you lose, it means that this decision will apply to all countries that fall under the UPC.
For start-ups, an additional factor is that their main focus is on growing, developing and protecting their new technology and a Unitary Patent can be a nice bonus in that case. However because the Unitary Patent makes it easier to encroach on someone else's territory, they may end up having to spend a lot of valuable time on investigating third-party rights.
The UPC makes it 'riskier' to infringe. This means that you will inescapably have to pay attention to the right of others. Larger companies in the high-tech sector are also faced with this. They too are more likely to risk infringing the rights of competitors in Europe. It is therefore especially important for them to keep a close eye on the competition and on the patents they file, for example.
What to do next? Tips for patent holders
What does this mean for you as a patent holder? Here are a few tips for you.
- Keep a close eye on what your competition is doing. What are they developing and what patent applications are they filing? This will help you to determine what you will need to take into account in order to prevent infringements. You could, for example, do a database search in Google Patents or Espacenet.
- Discuss with your Patent Attorney what the changes mean for your patent portfolio and whether you will need to change your strategy.
- Consider - in consultation with your Patent Attorney - whether you want to opt-in or opt-out. If you do not want to opt-in, you will need to inform your Patent Attorney about this. You can always change this at a later stage. If you do not communicate your decision, you will opt-in automatically.
As a Patent Attorney, I am looking forward to the UPC and the Unitary Patent with a great deal of interest. It offers many opportunities for the innovative high-tech sector provided they are properly prepared for the changes.
