UP and UPC

After over four decades of discussion, the implementation of a so-called “Unitary Patent Package”, i.e. the establishment of a Unitary Patent and a Unified Patent Court (UPC), is in its final stages.

Only Germany is required to ratify the Unified Patent Court Agreement for it to come into effect, but with German ratification being held up by a referral to its Constitutional Court, the earliest the new scheme is expected to start is the first quarter of 2019.

The Unitary Patent Package aims to provide a single approach to patent protection and enforcement across 25 European Union Member States with a combined population of over 400 million.

Using the existing European patent application procedure, a Unitary Patent will be administered centrally by the European Patent Office. Once obtained, a Unitary Patent will be enforceable throughout the participating Member States in a single action brought before the new UPC. The UPC court structure will have a number of Courts of First Instance consisting of Central, Local and Regional Divisions in various locations, along with a Court of Appeal based in Luxembourg. The Central Division will have exclusive jurisdiction over declarations of non-infringement and revocation actions (other than counterclaims), while local and regional divisions will be responsible for infringement actions and counterclaims for revocation.

Since the United Kingdom voted to leave the European Union ("Brexit") there has been a lot of uncertainty in terms of the future of the Unitary Patent Package. However, implementation remains on course. When the UK actually leaves the EU, some additional changes will be required to the Unitary Patent Regulation and additional rules will be needed on jurisdiction and enforcement, but these could be dealt with as part of the Exit Agreement.

Our specialist UPC team is on hand to guide you through this new UPC regime, helping you enforce your intellectual property rights. Please contact your usual Potter Clarkson attorney, who can begin helping you plan for these important developments.

To assist you further, our team has compiled a number of FAQ’s which we hope will provide answers to some of your initial questions.