The new European Unitary Patent (UP) system is now coming into effect on April 1, 2023 for 17 EU member states (Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Sweden), while other EU countries are expected to join at a later date.
In our previous article, we highlighted some benefits of the new UP system, among which there is the creation of the Unitary Patent Court (UPC), which will have jurisdiction over the infringement and validity of UP patents and over all signing member states. The UPC will also have jurisdiction over existing European Patents, but the holders of such patents will have the option to “opt out” of the UPC.
Should owners of existing European Patent opt in or opt out of the UPC?
We think that the UPC jurisdiction will be highly advantageous, considering that, first of all, it will be cheaper to litigate in and it will prevent forum shopping among member states. Also, a UPC decision, valid and enforceable in all signing member states, will prevent diverging decisions and lack of legal certainty. One foreseeable and important disadvantage, however, is that a patent deemed invalid by a UPC decision will also be automatically invalidated in all signing member states.
In any case, the UP system will undoubtedly be worth it for those seeking protection in numerous member states, as the cost of filing through the UP system is scheduled to be about the same as filing in five individual states.