The Unified Patent Court (UPC) is now in full swing. We are representing clients in some of the first cases before the UPC, and so understand the opportunities presented by this forum and strategies that can be deployed.
The Unified Patent Court (UPC) came into force on 1 June 2023. This means that Unitary Patents (UP) can now be granted by the European Patent Office (EPO), and the UPC has opened as a fully operational court, hearing a variety of actions across different divisions. The UPC has been a long time coming with several years of uncertainty. Although the UPC Agreement was first signed in 2013, the UK’s withdrawal in 2020 and three separate German constitutional challenges have all threatened the existence of the UPC.
UPs and the UPC are the most significant changes to the European patent system for several decades. Existing European patents, once granted by the EPO, are converted into a bundle of separate national patents which are subject to renewal, invalidation and enforcement on an individual basis in each territory. In contrast, UPs provide a single, uniform patent that covers 17 Member States who are participating in the UPC. Unitary Patents will be renewed by the payment of a single fee, as well as being invalidated and enforced centrally at the UPC. A fundamental feature of the UP system is that it is an “all or nothing” approach. This has the result that if a UP is revoked or lapses, it will cease to exist automatically across all member states; it cannot be in force for only some of the member states.
Current UPC Member States cover the majority of the European Economic Area with a population of over 300 million people and a GDP value of over $13 trillion. One UPC action will therefore cover a region exceeding the US market by population and GDP.
The ability to launch pan-European infringement and revocation proceedings through the UPC is therefore an extremely powerful tool for businesses, as can be seen by the recent decisions coming through the court.