The introduction of a unitary patent and a unified patent court system is viewed as a very exciting prospect. Somewhat paradoxically, however, the introduction of the UP will mean that three types of patents will become available in Europe: national patents; so-called European bundle patents; and UPs. During the transitional period, litigation of European bundle patents may take place not only before national courts, but also before the UPC. Initially therefore, the system will be more complex than at present.
For existing holders of European patents, one of the key issues will be whether to opt out of the UPC system during the seven-year transitional period. Depending upon the amount of the opt-out fee, this would be a prudent step for “crown jewel” patents because it would avoid the risk of pan-EU patent revocation by an inexperienced new court. An opt-out may generally be withdrawn, thereby allowing pan-EU enforcement of that same patent at a later date.
An issue for patent applicants will be whether to choose unitary protection upon grant rather than to choose a European bundle patent. The answer will in part depend upon the geographical scope of protection needed for the technology in question and of course the cost of renewal fees. As to the latter, a European bundle patent gives greater flexibility: some territories can be “dropped”’ during the life of the patent, with consequent cost savings.
At first instance, the seat of the UPC central division will be in Paris, with sections in London and Munich. Broadly, London will deal with chemical and life sciences patents, Munich with mechanical engineering and Paris with electronic and ICT. These courts will also deal with infringement cases transferred by local or regional divisions as well as infringement cases where there is no UPC division in the member state in question. This could well lead to a concentration of patent litigation in France, the UK, and Germany.
If the litigation process before the UPC is efficient, and if the UPC is able to make decisions quickly, predictably and consistently, it will be a great success. The quality of the judges, facilities, administrative support and level of funding, as well as the amount of fees charged will all be key elements. But we in the UK and France are optimistic. There is a real commitment among all parties to make it work.