The advent of the United Patent Court (UPC) seems to have been interminable but it does, at long last, appear that we are on the home stretch. Realists, as well as optimists, are talking about spring 2017 as the likely date for the Court to open, with a sunrise period beginning later this year.
The UPC will be effective for existing as well as future European patents and patent applications so now is not too soon to start to think about what to do to prepare.
As the law currently stands it is possible to apply for a European patent through the European Patent Office but any patent dispute, should it not be settled, must be resolved in the courts of those countries where there is a dispute. This can make enforcing a patent very costly and time-consuming, involving litigating in multiple jurisdictions.
This will no longer be the case with the introduction of the UPC as the patentee will be able to sue infringers in just one court. This should result in substantial savings of costs and time. A note of caution however as a patent may be invalidated as a whole by one single challenge brought in the UPC.
The Unitary Patent will come into existence at the same time as the UPC. It will be possible to apply for the grant of a patent with “unitary effect” which means it will, at the same cost, cover all the signatory countries at once as opposed to the traditional European patent which designates specific countries. The UPC will hear all patent disputes in relation to European and unitary patents save for traditional European patents where the patentee has made a specific application to opt out of the UPC system. If no opt out is made, traditional European patents will be dealt with by the UPC rather than the national court. Patentees should review their existing portfolios to establish whether they wish to opt out and also decide on filing strategies for future applications.
The Court will have a central division with its seat in Paris and thematic sections in London (focusing on pharmaceuticals) and Munich (for mechanical engineering). There will also be local divisions which will be allowed a degree of flexibility as to their conduct of proceedings, which means there may still be “shopping” by patentees for the location THAT they consider most be desirable or suitable for them.
The UK’s participation in the UPC, of course, is dependent on the UK not voting to leave the European Union in June. Should it decide to do so, the future position regarding the UPC and the European and unitary patents, is to put it at its mildest, very unclear.