Introduction to the Unified Patent Court (UPC) and Unitary Patent System in Europe

The Agreement on a Unified Patent Court (UPCA) entered into force effective as of June 1, 2023. It will be possible to obtain a unitary patent in the 17 member states of the UPCA. The member states are;

Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Sweden, Slovenia

Furthermore, a unified European Patent Court (UPC) will be responsible for unitary patents, existing and future European patents as well as SPSc (Supplementary Protection Certificate).

• UNITARY PATENT

European Patent applications are filed at the European Patent Office (EPO) and are centrally prosecuted by the EPO on behalf of 38 member states. Once an application is granted a patent, the patent is validated in the desired member states.

For pending European patent applications, it is possible to file a request for unitary effect after the decision to grant. Such a patent would have a simultaneous effect in all of the 17 participating EU states mentioned above. 

This request must be filed no later than one month after the publication of the mention of the grant of the European patent in the European Patent Bulletin. The renewal fees for unitary patents shall be paid centrally to the European Patent Office. If a patent proprietor requests and obtains a unitary patent, this patent would be within the jurisdiction of the Unified Patent Court and the “opt-out” procedure would not be possible.

Please also be informed that the European patent may still be validated classically in the desired states of the EPC and would be opted out of the jurisdiction of the Unified Patent Court. 

• The Unified Patent Court

Classical European bundle patents had to be enforced or contested in the individual member states of the EPC. If the patent was invalidated or enforced in a member state, this decision would have no legal effect in other EPC member states where the patent is in force. After June 1, 2023, the Unified Patent Court has exclusive jurisdiction for all European patents. This applies to all future patents with unitary effect and to all classical European bundle patents including those obtained in the past and validated in one of the 17 member states indicated above.

For the classical European patents, parallel jurisdiction of the Unified Patent Court and the national courts exists during a transitional period of 7 years. Please be informed that the proprietor of such a European patent is given the possibility to exclude the exclusive jurisdiction of the Unified Patent Court. For this purpose, the proprietor shall prepare and file a request with the Unified Patent Court and declare that is wished to opt-out in order to be outside the jurisdiction of the UPC.