There is now final confirmation that the Unified Patent Court (UPC) will open its doors on June 1, 2023. Confirmation was received on February 17, 2023 by virtue of ratification of the UPC agreement by Germany.

gavel and a stack of papers

The president of the UK Chartered Institute of Patent Attorneys (CIPA) welcomed the news, saying that UK patent attorneys were looking forward to playing a central role in the Unified Patent Court.

German ratification was the final step required to bring the UPC agreement into force. The opening of the court is expected to herald the biggest shake-up of Europe’s patent litigation market in a generation.

There are two elements to the agreement being:

  • Unified Patent Court - The creation of a centralised court for determining infringement and validity of European Patents and of individual national patents of EU member states, the Unified Patent Court; and
  • Unitary Patent - A new type of patent, the European patent having unitary effect, or just “Unitary Patent” which will replace the present bundle of individual national patents entered into after grant of the classic European patent.

Unitary Patent

Applicants will be able to choose a single – or “unitary” – European patent, rather than the existing bundle of patents validated in some individual countries. It is still necessary to file and prosecute a European patent application before the European patent office first, in order to take advantage of the new Unitary Patent at the end of that European patent application procedure. The Unitary Patent is not a replacement for a European patent, but is a subsequent follow – on right created after grant of a European patent.

Unitary Patents (and existing bundles of national patents, unless opted out) will all be enforced in the Unified Patent Court, forming a streamlined system for the grant and enforcement of patents in Europe.

The new Unitary Patent system is expected to be cheaper and simpler than the current bundle of national patents for states participating in the Unitary Patent.

Unified Patent Court

The Unified Patent Court will determine matters of infringement and validity and some other issues for Unitary Patents; individual national patents of EU member states file through their national patent office, and (European patent [country]) national patents provided those states are in the UPC agreement. Not all European Patent Convention states are in the UPC agreement, and not all European Union member states are in the UPC agreement.

Suitably qualified UK-based patent attorneys will have rights of representation before the Unified Patent Court and will bring some unique advantages to their clients. The expectation is that patent litigation in the Unified Patent Court will be less expensive and quicker than in German courts, or UK courts.

Our CIPA President said: “News of Germany’s ratification is very welcome. UK patent attorneys have been looking forward to participating in the new system for a number of years and offer their clients a number of advantages”.

“We will have the advantage of language, as most of the local UPC courts will use English – some of them exclusively. Also, central revocation actions will be in the language of the patent, and the majority of European patents are in English.”

“UK patent attorneys will also have access to more litigation markets than others, with access to the European Patent Office, the UPC and the UK.”

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Article Published February 22nd, 2023