Summer 2023 in Europe will bring a bright new patent system!

SIPM welcomes the new Unified Patent Court (UPC), which opens on 1 June 2023.

The practical challenges in the period leading up to this change (“sunrise”) are certainly keeping our dedicated team busy with preparation! While it has taken considerable effort to come into being, ultimately, this patent framework is a very positive step and will provide users with new features, benefits, and flexibility.

Of particular note is the Unitary Patent (UP), a new group designation made available upon the grant of a European Patent (EP), which will have a single validation and renewal procedure for all UP member states (currently 17). What’s more, a UP can be combined with the present system for good effect; in many cases providing inherently improved geographic coverage in Europe and which is comparatively better value, particularly over the life of the patent.

Importantly, the UPC provides Europe with a central patent litigation system with exclusive jurisdiction over the new UP. However, the introduction of a blanket outcome from a single court (effective in all UP member states), whether it be a transfer, lapse or a more complex action of infringement, limitation and/or revocation, will create both opportunity and risk for parties involved.

Assertive applicants may positively designate the UP and thereafter exploit the central UPC system to facilitate far swifter and more cost-effective enforcement than has ever been available in Europe, especially for robust assets. Conversely, patentees must be mindful that unless opted out from the UPC, a granted EP will automatically fall under its jurisdiction, giving a renewed chance (post-opposition) for a competitor to revoke that right in all UP members with a single attack (where previously the expense and burden of a court action in each UP member would be necessary and without a uniform outcome). It will take time for the UPC to build both competency and trust in the wider community; for many, the option to opt out of important EPs and dissolve litigation risk before UPC commencement will be an attractive one.

We are currently helping clients understand the risks and rewards of the new system and are developing tailored solutions; much is dependent on the relative strength and status of a given asset, the contractual, commercial and/or financial considerations relating thereto, as well as general attitude to risk.