While a radical departure from prior practice in the EU, the concept of a European Patent with Unitary Effect will be familiar to US practitioners. That is because the Unitary Patent (UP) System is an “all eggs in one basket” system – much like that in the US, where the USPTO is the only agency authorized to issue US patents and an issued US patent is applicable and enforceable in all 50 states.
Even after the UP system goes into effect, however, patent holders and applicants may opt out of the system for many years. Inventors can choose to have patents under the UP system, the existing EPU system or a country’s national system. Moreover, not all EU countries have agreed to be bound to the UP system – most notably Italy, Spain and Poland.
As a result, multinational companies will have a broad variety of European patent enforcement and acquisition strategies available even after the advent of the UP system. Some suggest that for important inventions, all three systems should be used, with the applicant patenting differently in each system so that only part of the portfolio is in the UP system.
The Unified Patent Court will also be familiar to US practitioners in concept because it is similar to the US federal court system, which has exclusive jurisdiction over patent cases and the ability to issue binding decisions and injunctions across the US. The UPC will be able to decide both infringement and invalidity cases, and its decisions and injunctions will be binding in all countries that have signed on as member states to the UPC agreement.
Unlike the US court system, however, the UPC will be a specialized patent court system. To take part, countries must sign up. There will be a new set of procedural rules based on European best practices, and sitting judges will be redeployed and, as necessary, trained in patent law.
Moreover, in the undoubtedly bumpy transitional period to come, we all should remember that, while the system has many familiar aspects, it is largely being created from scratch.