After much dispute, discussion and delay, the Unified Patent Court launch officially took place this morning at 9 am CET (1 June 2023). Organisations can now benefit from a new unitary patent (UP) right and access the new Europe-wide patent court system (UPC).
The Unified Patent Court (UPC) system was officially launched this morning (1 June 2023), with the Courts now open to hear disputes over eligible European patent rights. The Unified Patent Court launch marks the end of the Sunrise period, which gave rights holders the opportunity to opt out from the new system before the UPC came into effect. As of today, the European Patent Office (EPO) can also grant European patents with unitary effect (unitary patents).
Unified Patent Court launch: Implications for new European applications
The new system does not change how patent applications are filed and prosecuted in Europe. However, once a patent reaches the grant stage, the proprietor can now select the unitary patent protection route for the EU member states that have ratified the UPC Agreement (UPCA) instead of validating nationally in those countries.
At present, 17 EU member states have ratified the UPCA, including France, Germany and Italy, with more expected to follow. This means organisations effectively have three options for patent protection in Europe depending on their countries of interest: the classical EP validation route for all territories; the unitary patent for ratified countries; and, a combination of the unitary patent with EP validation for non-signatory or ineligible countries.
Unified Patent Court launch: Implications for existing European rights
As importantly, today marks the start of the UPC’s competency for decisions relating to the validity and infringement of unitary patents and ‘classical’ EP titles (including supplementary protection certificates derived from them) in the EU member states that have ratified the UPCA. Only EP titles proactively opted out are excluded from the UPC’s jurisdiction.
Rights holders who missed the three-month window given by the Sunrise period can still lodge opt-outs at the UPC Registry from today and for a planned transitional period of seven years (which may be extended up to 14 years). EP applications, EP patents without unitary effect and corresponding SPCs can be opted out, but not EP patents with unitary effect (unitary patents).
Safeguarding products against seizure in the EU
From today, the UPC also has jurisdiction to order provisional measures, such as requests for prohibition and/or counterfeit seizures based on patent infringement claims.
As the UPC can grant such measures without a hearing, it may be advisable to counter the risk by filing a protective letter at the UPC Registry. As per Rule 207 of the Rules of Procedure of the UPC, such letters will have effect for six months (extendable upon payment of an extension fee). Such protective letters are not stored in the public domain and will only be made accessible if a claim is made.
If you have questions about the UPC, European patent system or protective letters, please speak to your Novagraaf attorney or contact us below.