Unified Patent Court expected to launch on 1 June 2023
According to a recent statement by the German Federal Ministry of Justice, on 17 February 2023 Germany ratified the Agreement on a Unified Patent Court (the UPC Agreement). As published on the official website for the Unified Patent Court (UPC), Germany’s ratification launches the countdown established under Article 89 of the UPC Agreement according to which the UPC Agreement will enter into force on 1 June 2023.
The entry into force of the UPC Agreement marks the opening of the doors of the Unified Patent Court, which will provide a “one-stop-shop” for enforcement of European patents across UPC member states. In addition to the new court system, the entry into force of the UPC Agreement also reforms the European patent system: In addition to the existing European patent framework (classic European patents), there will be a new framework of European patents with unitary effect (European unitary patents) that will be automatically effective in each UPC member state. Existing classic European patents will become subject to the UPC enforcement regime unless the patent holder opts such European patents out from the UPC.
The following are the key points to consider for holders of existing European patents and supplementary protection certificate holders:
- Assess the benefits and risks associated with unitary patents and the reformed enforcement options.
- Evaluate the impact of the UPC on the current patent portfolio and identify strategic opt-outs of existing European patents and supplementary protection certificates.
- Notify all opt-outs, preferably during the sunrise period, to prevent third parties from gaining the upper hand on these decisions.
The system for notifying opt-outs for existing European patents and supplementary protection certificates is currently under trial and the sunrise period for opt-out notifications has not yet commenced. The sunrise period is expected to commence three months prior to the entry into force of the UPC Agreement (1 March 2023).
The reform will not affect national patents, only European patents and supplementary protection certificates. For more details, please see Roschier insights article on the UPC.