Summary of the most important developments on the unitary patent system

On June 1, 2023, the long-awaited unitary patent system was activated.

On June 1, 2023, the long-awaited unitary patent system was activated. In accordance with EU regulations (No. 1257/2012 and No. 1260/2012), the system officially came into force with the introduction of the Unified Patent Court (UPC) Agreement. Previously, patent applicants in Europe only had the option of having the granted European patent validated and maintained individually in the EU member states. The European patent with unitary effect (Unitary Patent) now offers an alternative to this cumbersome and potentially very costly process. Patent applications will still be filed with and examined by the European Patent Office.


Milan to host third central division after UK withdrawal

Following the United Kingdom's withdrawal from the Agreement in 2021, plans for London to host a central division had to be recalibrated. As a result, a trilateral meeting between Italy, France, and Germany was held on June 2, 2023, to negotiate a permanent solution to the arrangement originally planned for London. The triumvirate reached a consensus on the distribution of the competencies previously allocated to London among their UPC central division seats in Milan, Paris, and Munich.

According to the current state of negotiations, Milan will handle IPC Section A patents (human necessities), Munich will additionally handle IPC Section C patents (chemistry and metallurgy), and Paris will additionally handle SPCs from Sections A and C. This arrangement seems to be in line with the speculations that have been making the rounds in recent months. The member states will meet again on June 26 to take a decision.

A Diversity of Languages, with a Unifying Thread of English in UPC Proceedings

Local or regional divisions of the UPC, such as those dealing primarily with infringement cases, have been given the freedom to conduct proceedings in their official language or one of the official languages of the European Patent Office (EPO) - English, French or German - as determined by the division.

On June 1, 2023, the UPC announced that the French, German and Italian local divisions of the UPC have designated English as an available language of proceedings. This announcement resolves earlier concerns as to whether these divisions would permit the use of English as an alternative to their respective state's official language.
As a result, English has now been confirmed as an acceptable language of proceedings in all local and regional divisions of the UPC. It's important to note that for claims primarily related to revocation or non-infringement, which are primarily handled by the Central Division, the language of the patent is designated as the language of proceedings.

The opt-out situation for European patents

The unitary patent system provides an opportunity for new European patents to enjoy protection in many EU countries without having to go through cumbersome validation procedures in each country. In addition, all existing European patents are automatically subject to the jurisdiction of the UPC. While this offers benefits, it can also pose certain risks. Patent owners will have the opportunity to "opt out" and withdraw their existing patents from the new jurisdiction, thereby avoiding potential risks.

The UPC case management system has received nearly half a million opt-out requests to date. These numbers may reflect widespread skepticism about the new UPC system, or they may indicate that many patent owners perceive their patents as vulnerable and are unwilling to risk central revocation by the UPC.

It remains exciting to see how the acceptance of the UPC will develop. In the long term, the UPC will be the sole jurisdiction for European patents in the UPC contracting states, but a lot of time will pass until then.

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Author: Dr. Michael Schmid