We’re almost there: The Unified Patent Treaty will soon enter into force. The Treaty foresees two major innovations in the European patent landscape: The Unitary Patent and the Unitary Patent Court. What’s the timeline and what does this mean for the European patent owner?
Germany has finalized the process by ratifying the Unified Patent Treaty by March 2023. It will then take three months for the Treaty to enter into force; thus on the 1st of June 2023. These three months are the so-called ‘sunrise period’. More about this later on.
Which countries are participating?
The participating countries are the following: Belgium, Bulgaria, Denmark, Germany, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxemburg, Malta, Netherlands, Austria, Portugal, Slovenia and Sweden.
Unitary Patent (UP)
One valid patent for all participating countries.
Currently, a European patent granted by the European Patent office, needs to be validated separately in each individual country of choice in order for it to obtain actual protection in that country. Once the UP has been introduced, it will suffice to opt for the UP in order to obtain valid protection in all participating countries. It will at the same time remain possible to also validate a granted patent in the non-participating countries.
The big advantage is clear: Cost efficiency.
So far, separate validation costs have to be paid for each country, as well as high translation costs in certain cases. The Unitary Patent will put a stop to these excessive costs and will only require a single fee for all participating countries. The same will apply for renewal fees. Whereas now separate renewal fees need to be paid per validation country, the Unitary Patent will require only one renewal fee for all participating countries.
When searching for a potential weak spot, we note the consequences of invalidity or infringement proceedings. In case a Unitary Patent is nullified, it will be nullified in all participating countries. So it’s all or nothing: The patent stands or falls in all participating countries.
Unified Patent Court (UPC)
One central court where all disputes concerning European patents will be handled. Not only future European patents, but also those that have already been granted will fall under the jurisdiction of the UPC.
More specifically, this means that European patents will be under threat of a ‘central attack’. Currently one can only seek redress before national court with the scope of the action limited to the specific country. Once the Treaty enters into force, one will be able to take legal action against a European patent as a whole before the UPC, and the consequences will be binding for all countries who enter the Treaty.
The Unitary Patent Treaty does however provide a mechanism to prevent a ‘central attack’. Up until 7 years after the Treaty has entered into force, the holder of a European patent will be able to make use of the ‘opt-out’ procedure. By making use of this procedure, one chooses to pull his patent away from the jurisdiction of the UPC.
The 3-month period between the ratification by Germany and the entry into force of the Treaty.
We already know that a European patent holder does not have to fear exposure to a ‘central attack’, if they make use of the opt-out procedure in time. Even better news: A worst-case scenario can be prevented by already opting out before June 1st, during the sunrise period. This way, protection on the European market remains maximized by not giving a possible third party the chance to bring down the whole house as soon as the Treaty enters into force.