The Unitary Patent system on the home straight

Over the past months, the European Unitary Patent system has been taking shape, and it is expected that the system will become operational in late 2022 or early 2023. It’s time to prepare.

The Unitary Patent system will comprise a new European patent with unitary effect in all participating EU member states (currently all EU member states except for Spain, Poland, and Croatia), and a new Unified Patent Court (UPC) to rule on these Unitary Patents, but ultimately also on all (conventional) European bundle patents granted by the European Patent Office. The system will provide, for the first time in history, a quasi-EU wide patent right.

For many years, the Unitary Patent system has progressed two steps forward, one step back. But after many setbacks, it now appears much more likely than not that the system will become operational in the near future. Despite Brexit, the political determination to move ahead with the project remained strong, and the preparations took up speed after the German constitutional court dismissed two constitutional complaints against the project in June 2021. In January 2022, Austria became the 13th member state to participate in the provisional application of the UPC Agreement, which triggered the entry clause of the Provisional Application Period. During the Provisional Application Period, the Court is being set up, including the IT system and the sophisticated electronic Case Management System. In parallel, interviews are taking place for the selection of the judges.

As soon as the Administrative Committee has signaled that the Court is operational, Germany will deposit its instrument of ratification with the Council of the European Union. This step will mark the start of the so-called “sunrise period”. During this period, patent owners will already be able to opt-out their existing patents from the Court, to avoid being trapped in the new system by commencing litigation. The Court will then start operating three to four months later, possibly in the first quarter of 2023.

The European Patent Office (EPO) has meanwhile implemented some transitional measures with a view to supporting users in an early uptake of the Unitary Patent. During the “sunrise period”, users will already be able to file their request for unitary protection for all patent applications for which the EPO has issued a communication regarding the intention to grant, and the EPO will inform applicants filing requests about formal deficiencies in their requests at an early stage. Moreover, during the “sunrise period”, the patent applicants will be given the opportunity to request a delay in issuing the decision to grant for all European patent applications for which an intention to grant communication has already been dispatched but not yet approved by the applicant. This will make a European patent eligible for Unitary Patent protection that would otherwise have been granted before the start of the new system.

Should you request unitary protection for your newly granted patents? Should you opt out your existing patents? It’s a tough decision that depends on many factors. Find here an overview of the new system and of the preparations that you should make already now to get your patent portfolio ready for the UPC!

In case of any questions relating to the Unitary Patent System or the preparations that you may want to make, please contact our UPC-Team.