In a day that many thought would never come to pass, the Unified Patent Court (UPC) has thrown open its doors and, from today (1 June),  a unitary patent may be granted by the European Patent Office (EPO).

It has been a tortuous process that has seen the UPC project weather many storms including battles over official languages, competition for court locations and Brexit, which saw the UK leave the burgeoning system.

The UPC will provide a uniform centralised platform for Europe-wide patent litigation and will hear both infringement and revocation actions.

It will provide patent protection across all participating EU member states by way of a single patent application filed with the EPO in Munich – the European patent with unitary effect or the unitary patent (UP) for short.

The UPC will decide on infringement and validity of both UPs and ‘classic’ European patents and will be composed of judges from all participating member states of the European Union.

The UP and UPC will start by covering 17 EU member states that have already ratified the UPC Agreement, the number is expected to increase to 24 out of the 27 member states as more ratify. But for now the UPC will be a court common to 17 and will comprise a Court of First Instance and a Court of Appeal.

The European Patent Office notes that the Unitary patent system brings a host of substantial improvements for users everywhere, including cost reductions, streamlined procedures, increased transparency and enhanced legal certainty.

EPO president António Campinos said: “The European Patent Office has been entrusted with administering the unitary patent by the member states, and together with our stakeholders, we’re going to make it another success for Europe.” 

Sunrise period

Today also marks the end of the sunrise period where organisations were able to ‘opt out’ patents from the new system before the court opened. Bristows notes on its website that opt-outs may still be filed on or after the start date of 1 June 2023 but these are at risk of being invalidated by a UPC action filed earlier in time.

Existing European patents which are not opted out, and the new UPs, which will cover at least 17 EU states, will be enforced and litigated at the UPC.

The case management system (CMS) was struggling towards the end of the sunrise period due to a “sharp increase of requests” to opt put of the new system; on May 25 the court said that if the CMS stopped working it would accept opt out applications in hard copy form.

Locations

Where to locate the courts also prompted much wrangling between competing member states. The Court of Appeal has its seat in Luxembourg and the Court of First Instance has a decentralised structure with local and regional divisions in member states. The Central Division is in Paris with a sector in Munich. Local divisions are located in Vienna, Brussels, Copenhagen, Helsinki, Paris, Dusseldorf, Hamburg, Mannheim, Munich, Milan, the Hague, Lisbon and Ljubljana. Regional divisions of the Court of First Instance are located in Stockholm, Riga, Vilnius and Tallinn.

Partner at IP firm Mewburn Ellis’ Bristol office, Sean Jauss, said: “The Unified Patent Court is a great achievement and it has our full support. It provides tremendous opportunities for everyone and is undoubtedly the most significant development in European patent law in decades.

“This system will bring about greater flexibility and choice when it comes to patent protection and litigation. With this, however, comes a degree of complexity and significant challenges. Mindful of this, Mewburn Ellis has been earnestly preparing for the launch and we stand ready to help our clients succeed with every aspect of the new system.”

Counsel in Linklaters’ IP practice in Paris Gaëlle Bourout commented: “This is a game changer and the most significant piece of patent law in decades since the inception of the Munich Convention on European patents, and will impact the way patents are to be prosecuted and litigated. Further options will therefore become available for designing and implementing offensive and defensive patent strategies across Europe.”

Injunctions

There are, however, concerns about certain aspects of the new regime, particularly around injunctions. Bolko Ehlgen, a partner in Linklaters’ Frankfurt IP practice, explained that the available remedies range from damages awards to – preliminary and permanent – injunctions. “The current injunction practice varies substantially between the member states with some systems applying mostly automatic injunctions and others taking a more discretionary and reserved approach.

“While the UPC has discretion when deciding on injunctions, one can expect that many of the judges will resort to the injunction-friendly approach known from their national systems. The unified proceeding will thereby give patent owners the possibility to ‘export’ this benefit into other jurisdictions in which an injunction is more difficult to obtain under the national system. The challenge for the UPC in the medium term will be to unify the approach to injunctions that its multinational bench of judges applies,” he concluded.

Law firms

Given the significance of the event, it is not surprising that many law firms are taking action to adapt to this new patent landscape. Last week French law firm Gide Loyrette Nouel announced it was forming a patent litigation partnership with Parisian IP law firm Regimbeau, which they said was in response to the increasing complexity of national proceedings and the impending launch of the UPC.

Anglo-German firm Taylor Wessing hired UPC expert Thomas Adocker in April from Austrian IP firm Schwarz Schönherr where he will be based in Vienna, a host for a local division. The firm cited his expertise in UPC as one of the main reasons for his recruitment as patent attorneys get to grips with the new system.

The UP/UPC system realises an ambition to unify European patents that dates back to 1975, when legislation was drawn up to provide a single patent covering all member states of the then European Economic Community, the forerunner of the EU.

EPO’s Campinos added: “This day heralds a new dawn for patents and innovation in Europe. It is a time when users can look forward to a more accessible form of patent protection that will deliver growth for our businesses and economies, and help our inventors to deliver sustainable solutions to tackle the great challenges of our day.”