The Unitary Patent is coming, Really!

On June 1, 2023. By then, all the difficulties with electronic access should be solved. These difficulties maide Germany wait longer before ratifying the Unified Patent Court Agreement. Germany has taken on the “gatekeeper” function and will not ratify the Unified Patent Court Agreement until everything is really ready to go.

Despite all the excitement surrounding the entry into force of a completely new international court, which has the same status as national courts, the European Patent with unitary effect (unitary patent) itself must not be forgotten.

Unlike the traditional European patent, which is filed centrally at the European Patent Office but is broken up into a bundle of national patents once granted, the unitary patent, which is also to be filed at the European Patent Office, confers unitary protection in 17 EU member states so far: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden.

After Brexit, the UK is missing and Spain is not participating, too, but in many cases the unitary patent can save a lot in translation costs and fees. Perhaps, however, at the expense of easier invalidation, because the unitary patent is not only granted with unitary effect, but also revoked at once if it turns out that the patent is invalid.

Despite all unitary effect: licences can of course still be granted territorially in the future.

This also closes the circle to the Unitary Patent Court: The UPC will be competent not only for European patents with unitary effect , but also for the traditional European (bundle) Patents. However, for one (or even two) transitional period(s) of seven years each, patentees can opt out of the jurisdiction of the Unified Patent Court in favour of the jurisdiction of the national courts. With this and the necessary differentiation with regard to territorial licences, it is clear: judgments on patent infringements or invalidations will not be as uniform as they seem to be any time soon.