Future of The Unified Patent Court (UPC)

Preparations for the Unitary Patent (UP) and the Unified Patent Court (UPC) have progressed. The court estimates that it will start operating in early 2023. There are currently a little over 50,000 European patents and national patents valid in Finland. With the Unified Patent System, the number of patents concerning Finland will increase over the years.

What is UPC?

The Unified Patent Court (UPC) is a court common to the Contracting Member States and thus part of their judicial system. The UPC will have exclusive competence in the Contracting Member States in respect of European patents and Unitary Patents. The main focus of the UPC is on settling disputes relating to European patents and Unitary Patents (UP). In addition, its scope will include disputes over traditional European patents that are currently handled in national courts.

The UPC consists of the Court of First Instance, the Court of Appeal and the Registry Office. In addition, the UPC agreement stipulates the establishment of a Patent Arbitration and Mediation Center and a Training Center.

However, the patent holders have the so called opt-out option to leave their European patent out of the UPC processing, in which case disputes concerning European patents will be handled in each country’s own court, as is the case today.

The opt-out possibility requires a notification to the UPC, which can be made at any time after the operation of the UPC during the seven-year transition period. However, the notification cannot be made if a lawsuit has been filed against the patent at the UPC. A possible opt-out for European patents should therefore be done immediately after German ratification.

The operation of the UPC is a prerequisite for the Unitary Patent System to be introduced.

Unitary Patents (UP)

The Unitary Patent offers a new alternative to the traditional European patent. The patent holder can, if he/she so wishes, bring the patent into force simultaneously in all countries participating in the unitary patent system. The system initially includes 17 EU member states. Unitary patents are granted by the European Patent Office EPO, which also grants traditional European patents. Applying for a patent from the EPO does not change, but after the European patent has been granted, the patent applicant can request its registration as a unitary patent. A UP is available for all European patents granted after the start of the system, and it must be applied for within one month from granting of the patent.

The Unitary Patent will become a new option for protecting inventions in Europe. The Unitary Patent is a regional, cross-border alternative to traditional European and national patents. This means that after being granted, the Unitary Patent becomes effective at once in all states participating in the new patent system. This is a difference to the traditional European patent, which after being granted, must be enforced individually in the desired countries that have signed the European Patent Convention (EPC).

The action’s start schedule and its likely effects

The start of the functions of the unified patent system and the common court still requires Germany to ratify the agreements. The granting of unitary patents and the operation of the unitary patent court begin on the first day of the four months following the German ratification. The operation of the unitary patent system and the UPC starts at the same time.

Since the UP comes into force in many countries with one application, it offers a more affordable option compared to a European patent if the patent is to be valid in at least four participating EU countries. However, since the patent gives an exclusive right to its professional use, the increase in their numbers may limit the freedom of operation of companies in Finland. At the same time, the possibility of patent infringement increases, which is why companies should monitor their competitors’ patenting, even if they themselves do not actively protect their inventions by patenting. The European Patent Office will maintain a register of granted unitary patents, where anyone can freely search for them.

More information and references

UPC Agreement

UPC website

Author:

Sanna Kärkkäinen

Legal Trainee, Oulu

Contact information:

Gsm: +358 45 782 00305

Email: sanna.karkkainen@lexia.fi

We at Lexia are happy to answer any questions you might have related to the Unitary Patent and Unified Patent Court.

Send your questions our way!
Senior Associate Marko Moilanen, email: marko.moilanen@lexia.fi, tel: +358 40 517 0002