From a foreign perspective, it is not easy to understand the difference between UP and UPC. If you are Italian, the distinction is extremely clear, as Italy joined the newly established unified patent court system (the UPC) but did not participate in the enhanced cooperation procedure that led to the unitary patent (the UP).

Italy’s peculiar position is probably going to change, as it can be hardly justified in logical terms. However, for the time being, this unusual distinction provides interesting opportunities for patent owners.

To get protection in Italy, it still will be necessary to go through the traditional routes: validating a European patent or filing a national application. If the scope of the claims coincides with those of the corresponding UP, those patents can be litigated before the Italian courts without the risk that the outcome of any litigation will affect patent protection in the rest of the EU.

This leads to a sort of litigation test ground, having the advantage of being located in a country participating in the UPC, whose judges will be therefore perfectly aware of UPC case law and practice (the Italian local UPC court will be located in Milan, where the major national IP Specialized Section is located).

Anyone interested in testing the strength of a patent without risking the protection it provides in the EU at large should consider the opportunities offered by the peculiar Italian situation. Of course, a number of issues could play a role in construing these kinds of actions (from the opt-out transitional regulations to the rules on international competence), but the intricacies of the new system and the existence of some differences and borders, even within an ever more unified territory, may be advantageously exploited.