After some 25 years in the making, it appears that the new European Unitary Patent (UP) and the Unified Patent Court (UPC) are likely to come into effect in 2017.

What’s new?

The new court system will allow patent litigation (enforcement against infringers, or attempted revocation of existing patents) to be conducted in a single court, with an outcome that will take effect in every European country covered by the UP. The aim is to reduce the cost and uncertainty of the current system, where multiple legal proceedings are conducted in parallel at the courts of each European country of interest.

What should I do now?

On the day that the UP and the UPC come into effect, all existing European patents and pending European patent applications will automatically become part of the new system. Importantly, there will also be an opportunity for any party owning a European patent or a European patent application to OPT OUT of the new system. Although it might sound counterintuitive to opt out of an improved system, there are important strategic reasons to consider doing so.

As a patent owner, if you hold a UP, that UP is vulnerable to a single challenge which could knock out your patent in every European country where it has effect. If you OPT OUT, your European patent will instead be considered as a bundle of separate, individual national patents, which could only be knocked out by separate legal proceedings in each country where it has effect (i.e., as happens now). So it will be harder for other parties to invalidate your patent if you OPT OUT.

Conversely, if you want to enforce your patent against an infringer who is operating in multiple countries covered by the patent, you can OPT IN before you start your infringement proceedings (provided that you have not already started infringement proceedings in a national court). So you can take advantage of the benefit of the new court system only when you need to, and avoid the disadvantage of the new system in the meantime.

When do I need to opt out?

Once the UPC has been established (which is likely to happen in the coming months) there will be a 6 month ‘SUNRISE PERIOD’ before the UP and UPC come into effect, during which you can OPT OUT.

The exact date when the UP and the UPC will come into effect is not yet known. This will happen when 13 European countries have formally ratified the agreement governing the court in their national laws. As of March 2016, nine out of the 13 countries needed had ratified the new agreement. The consensus of opinion is that the sunrise period might come into effect later in 2016 and the UP and UPC might then come into effect in early 2017.