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Could the first European Unitary Patent issue in 2023?

20th Jan 2022

The Unified Patent Court (UPC) Agreement to establish a Unified European Patent Court and the associated Regulations to allow the creation of a Unitary Patent were issued at the end of 2012.

Now, almost ten years later, Austria’s deposition of its instrument of ratification of the Protocol on Provisional Application of the UPC Agreement moves us a step closer to the establishment of the UPC and the issue of the first Unitary patent.

Since the grant of the first European patents by the European Patent Office, it has been necessary to validate a European patent in each country in which protection is required. At this point, the European patent becomes a bundle of national patent rights, with renewal and enforcement and validation of these national rights being at a national level. The idea behind the European Unitary patent was to replace the separate national validation of a European patent in each participating country with a single validation, giving a single right covering the participating countries. This single right would be renewed as one right, and enforcement and validity proceedings would be before a single court, the Unified Patent Court. In due course, all European patents in the participating countries – even those validated nationally – would also be enforced and invalidated by the UPC.

The UPC and Unitary Patent is only available for countries of the European Union.

Therefore, for countries that are a part of the European Patent system but which are not member states of the European Union, the current national validation, renewal, enforcement and validity arrangements will continue. This includes the UK who left the European Union since the original Agreement was signed. The same also applies for countries who are member states of the European Union but who do not wish to be covered by a Unitary Patent or come under the jurisdiction of the Unitary Patent Court. This may be of particular interest to many patent owners who will be able to have a Unitary Patent covering many European Union countries, but who will have a separate national validation in the UK. This UK validation may be enforced independently of the Unitary Patent. The UK validation would also be the subject of independent validity proceedings to those for the Unitary Patent. This would give the advantages of the Unitary Patent system while not requiring patent owners to have all their eggs in one basket their rights in at least one major European country, the UK, are not going to be tied to the outcome of proceedings before the Unified Patent Court.

In terms of the remaining steps to bring the Unified Patent Court and Unitary Patent into effect, it is necessary for final preparations to be made to establish the Court, and this required the deposition of instruments of ratification of the Protocol on Provisional Application of the UPC Agreement by thirteen member states. Austria have now deposited their ratification, meaning that the required thirteen ratifications are now in place. Therefore, the final preparations can now begin.

Once these final preparations have been completed, which could happen as early as September 2022, all that will be needed will be for Germany to deposit its ratification of the UPC Agreement, and this will start a four month term for the UPC Agreement to come into force. Therefore, it is possible that the UPC Agreement could come into force early in 2023.

We will keep watching for further developments in the preparations.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.

Steve Howe
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Would you like to know more? You can talk to Steve Howe who will be able to help. Call +44 (0)20 7539 4449


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