The European Unified Patent Court (UPC) is a new system for resolving patent disputes in Europe. It is designed to simplify and streamline the process of obtaining and enforcing patents across Europe, reducing costs and improving efficiency for businesses operating in multiple countries.
The Unified Patent Court is a standard entity slated to formally start on 1 June 2023 created with the intent to supplement the existing European Patent Office (EPO) with a new patent system introducing “unitary patents” with “unitary effect” in 25 participating member countries. The introduction of these systems can expedite the current patent process in Europe while offering patent owners broader patent protection and litigation settlement at a lower cost.
Unitary patents are patents filed in Europe that will be granted protection in the 25 UPC member countries. Following the UPC’s implementation, the patent process in Europe remains unchanged and applications will undergo the same scrutiny and criteria of the EPO. After a patent application is granted, applicants can opt to apply for unitary effect which would provide their patent protection in the territories of the 25 participating UPC Member States.
One of the key benefits of the UPC is that it will reduce the costs associated with obtaining and enforcing patents across Europe. Currently, businesses must obtain patents in each individual country where they wish to operate, which can be expensive and time-consuming. Additionally, enforcing patents in multiple countries requires separate legal proceedings in each country, further increasing costs and complexity. As such, the lower fees and broader protection of unitary patents may appeal to smaller entities. Furthermore, the “unitary effect” of a unitary patent facilitates processes like transfers and licensing through a single register instead of on a country-by-country basis.
While there are many benefits derived from unitary patents, some inventors with large patent portfolios may be hesitant to adopt the new concept. For instance, the unitary effect means that the outcomes of litigation cases would affect the patent portfolio in every territory of the UPC. As such parties with valuable patents such as pharmaceutical companies with drug formulas encounter greater risk if they were to go through litigation. Conversely, given the range of protection offered by unitary patents, inventors would be given an opportunity to claim infringement damages in broad areas of jurisdiction at one time. Fortunately, inventors are given the choice to opt out of the new unitary patent system if their European patents are granted. As a result, a safe choice for patent owners to wait and observe the workings of this new system rather than taking the risk of becoming an early adopter.
The UPC has faced some challenges in its implementation. One of the most significant challenges has been the ratification process, with several participating countries delaying ratification due to concerns over the impact of the UPC on their national patent systems. Additionally, there have been concerns over the potential impact of Brexit on the UPC, as the UK was expected to be a key participant in the system.
Despite these challenges, the UPC is expected to have a significant impact on the European patent landscape. By providing a streamlined and efficient system for obtaining and enforcing patents across Europe, the UPC will reduce costs and improve legal certainty for businesses operating in multiple countries. It will also provide a forum for resolving disputes involving complex technologies, ensuring that judgments are consistent and costs are minimized. While the implementation of the UPC in June may experience growing pains, it is expected to be a major step forward for European patent law and practice.