After decades of discussion, the implementation of a so-called “Unitary Patent Package”, i.e. the establishment of a Unitary Patent (UP) and a Unified Patent Court (UPC), has reached its final stages. The Unitary Patent (UP) aims to provide a single approach to patent protection and enforcement across 24 European Union Member States with a combined population of more than 350 million.
Using the existing European patent application procedure, a Unitary Patent will be administered centrally by the European Patent Office (EPO). Once obtained, a Unitary Patent will be enforceable throughout the participating Member States in a single action brought before the new Unified Patent Court (UPC). The Unitary Patent Package is currently expected to enter into force during the fall of 2022 and will be a supplement to the existing European Patent.
After delays caused by Brexit, complaint filings for the German Federal Constitutional Court (FCC), and the lack of sufficient countries having deposited the Protocol on Provisional Application (PPA) with the Council of the European Union during 2017-2021, the UPC took a vital step of the finalization on 18 January 2022 when Austria as the required 13th country made the deposit of the instrument of ratification (PPA).
The following day The Protocol to the Agreement on a Unified Patent Court on provisional application (PPA) entered into force, and a on 22 February the Preparatory Committee was replaced by the Administrative Committee of the Unified Patent Court and the recruitment of judges began, as well as other administrative preparations.
The PPA provides for a provisional application period in which various preparations will be made so that the UPC can become fully operational, including the employment of judges and the finalising of the UPC Rules of Procedure.
In April the Unitary Patent Guide 2nd edition was published with extensional descriptions of how to obtain, maintain and manage Unitary Patents.
A second piece of legislation, the UPCA, will be deposited by Germany at a later date, once the UPC is almost ready to start operating. This will trigger the ‘UPC countdown’, with the UPC opening its doors approximately 4 months later.
Initially, Unitary Patents may not cover all participating Member States as some of them may not yet have ratified the UPC Agreement when it enters into force. Outstanding ratifications are likely to take place successively, so there may be different generations of Unitary Patents with different territorial coverage. The coverage of a given generation of Unitary Patents will stay the same for their entire lifetime, irrespective of any subsequent ratifications of the UPC Agreement after the date of registration of unitary effect. In other words, there will be no extension of the territorial coverage of Unitary Patents to other Member States which ratify the UPC Agreement after the registration of unitary effect by the EPO.
Our specialist UPC team, consisting of experienced European Patent Attorneys with UPC litigation certificates who can represent clients in the future UPC court, will be ready to help you understand and prepare for these challenges, and help you enforce your patent rights throughout Europe.
If you want to learn more about the Unitary Patent Package and how aera’s experts can help you, please contact us or send an email directly to one of our experts below.