According to Maura O’Malley, the Unified Patent Court (UPC) has opened its doors, allowing the European Patent Office (EPO) to grant a unitary patent beginning today, June 1. This is the most significant development in European patent law in decades.
The UPC project has endured many storms over the course of its tortuous process, including disputes over official languages, competition for court locations, and Brexit, in which the UK left the developing system.
Both infringement and revocation actions will be heard by the UPC, which will serve as a unified, central platform for Europe-wide patent litigation.
Through the filing of a single patent application with the European Patent Office (EPO) in Munich, the European patent with unitary effect, or UP for short, will provide patent protection to all participating EU member states.
Judges from all participating European Union member states will make up the UPC, which will rule on infringement and validity of both UPs and “classic” European patents.
The UP and UPC will initially cover 17 of the 27 EU member states that have ratified the UPC Agreement. As additional member states ratify, this number is expected to rise to 24. However, for the time being, the UPC will consist of a Court of First Instance and a Court of Appeal, making it a court with 17 members.
According to the European Patent Office, the Unitary patent system offers a number of significant advantages to users worldwide, including reduced costs, simplified procedures, increased transparency, and increased legal certainty.
António Campinos, president of the EPO, stated: The member states have given the European Patent Office the responsibility of managing the unitary patent. Together with our stakeholders, we are going to make it yet another success for Europe.”
Sunrise period: This day also marks the end of the sunrise period, during which businesses could “opt out” of the new patent system before the court opened. On its website, Bristows states that opt-outs can still be filed after June 1, 2023, but they run the risk of being invalidated by a UPC action filed earlier.
The UPC will be the venue for enforcement and litigation of existing European patents that have not been opted out and the new UPs, which will cover at least 17 EU states.
Due to a “sharp increase of requests” to adopt the new system, the case management system (CMS) struggled toward the end of the sunrise period. The court said on May 25 that opt-out applications in hard copy would be accepted if the CMS stopped working.
Locations: Competing member states fought a lot about where the courts should be located. The Court of First Instance has a decentralized structure with local and regional divisions in member states, while the Court of Appeal has its seat in Luxembourg. With a sector in Munich, the Central Division is located in Paris. Vienna, Brussels, Copenhagen, Helsinki, Paris, Dusseldorf, Hamburg, Mannheim, Munich, Milan, the Hague, Lisbon, and Ljubljana are the local divisions. The Court of First Instance has regional divisions in Stockholm, Riga, Vilnius, and Tallinn.
Sean Jauss, a partner at the Bristol office of IP firm Mewburn Ellis, stated: We fully endorse the Unified Patent Court, which represents a significant accomplishment. It gives gigantic open doors to everybody and is without a doubt the main improvement in European patent regulation in many years.
When it comes to patent protection and litigation, this system will give users more options and flexibility. However, this comes with some complexity and significant difficulties. Mewburn Ellis has been diligently preparing for the launch in this regard, and we are prepared to assist our clients in utilizing the new system to its full potential.
Galle Bourout, a lawyer in Linklaters’ IP practice in Paris, made the following remarks: This will change how patents are prosecuted and litigated, making it the most significant piece of patent law in decades since the Munich Convention on European Patents was established. Further choices will in this manner become accessible for planning and carrying out hostile and protective patent methodologies across Europe.
There are, nonetheless, worries about specific parts of the new system, especially around orders. The available remedies, according to Bolko Ehlgen, a partner in Linklaters’ IP practice in Frankfurt, range from damages awards to preliminary and permanent injunctions. The member states’ current injunction practice varies significantly, with some systems using mostly automatic injunctions and others using more discretion and reserved methods.
“While the UPC has prudence while settling on orders, one can expect that a large number of the adjudicators will turn to the directive accommodating methodology known from their public frameworks. The brought together procedure will accordingly give patent proprietors the likelihood to “send out” this advantage into different locales wherein a directive is more challenging to get under the public framework. “He came to the conclusion that the UPC will face the challenge of unifying the approach to injunctions that its multinational bench of judges applies in the medium term.”
Law firms Many law firms are taking steps to adapt to this new patent landscape because of the significance of the event. The partnership between Parisian IP law firm Regimbeau and French law firm Gide Loyrette Nouel was announced last week as a response to the increasing complexity of national proceedings and the upcoming launch of the UPC.
Thomas Adocker, a UPC expert, joined Taylor Wessing in April from Schwarz Schönherr, an Austrian IP firm. He will be based in Vienna as a host for a local division. As patent attorneys become familiar with the new system, one of the primary reasons the company hired him was due to his expertise in UPC.
Since 1975, when legislation was drafted to provide a single patent covering all member states of the then-European Economic Community, which served as the precursor to the EU, the goal of unifying European patents has been realized through the UP/UPC system.
Campinos of the EPO added: This day marks a new beginning for European innovation and patents. It is when clients can anticipate a more open type of patent insurance that will convey development for our organizations and economies, and assist our creators with conveying maintainable answers for tackle the incredible difficulties of our day.”