The Unified Patent Court and the Unitary Patent

The Unitary Patent (UP) provides a single, unitary and indivisible patent right covering the majority of European Union member states, and provides proprietors with an alternative to the pre-existing European patent system where a European Patent (EP) is granted centrally and then validated in individual countries to produce a bundle of national patent rights. Under the EP system, each national patent must be enforced separately in the relevant national court.

The Unified Patent Court (UPC) is a new, specialised international court system, which is made up of a mixture of Central, Local, and Regional Divisions hosted in different EU member states acting as courts of first instance, with jurisdiction to decide on matters, including issues of infringement and validity, relating to UPs as well as EPs covering the EU member states taking part in the UPC (subject to a transition period and some exceptions). The UP is enforceable as a single patent in the UPC allowing for more efficient pan-European enforcement by patent proprietors via a single forum and removing the need for litigation in multiple European jurisdictions. However, the UPC system also increases the risk that a patent’s validity is challenged Europe-wide, as it gives third parties the opportunity to centrally revoke a UP in a single set of proceedings.

The UPC ‘opened for business’ on 1 June 2023, following a 3-month ‘Sunrise Period’ starting on 1 March 2023 during which time applicants and proprietors of traditional EPs and Supplementary Protection Certificates (SPCs) had the opportunity to, amongst other things, ‘opt-out’ their EPs from the jurisdiction of the UPC prior to its opening. While it is still possible to opt-out EPs from the jurisdiction of the UPC, this is only possible if no action in relation to the EP has already been brought before the UPC at the time the opt-out is filed .

Your strategy will depend on a variety of factors such as the location of your patents, your sector, and business values—Wiggin is here to help you navigate these questions. Although the UK is no longer participating in the UP/UPC system, our combined teams in Brussels and London, consisting of EU and UK specialists, are well positioned to help you navigate the challenges and potential opportunities arising from this new patent landscape and are qualified to represent you before the UPC and in the UK.