European Patents and Unified Patent Court

How the New System Works?

Once a Unitary Patent (UP) has been granted by the European Patent Office, the patent owner benefits from its unitary effect in the participating member states. It is therefore a supplementary and optional instrument that multinational companies, SMEs, or individuals can rely upon and patent applicants may still apply either for national patents, or for a European patent under the European Patent Convention (these take effect in one or more of the Convention’s contracting states).

The UP not only provides EU-wide uniform protection and equal effect in all the participating member states, it also offers an interesting alternative vis-à-vis cost: the cost of obtaining unitary effect with a UP will be lower than the cost of validating a European patent or multiple national patents in different designated states. The new patent system is also easier to manage: a single annual renewal fee, a single set of rules, a single jurisprudence, and a single court. As a result, decisions on validity or infringement will have effect across the whole of the territory of the participating member states.

Unified Jurisprudence – the Unified Patent Court

The new system sets up a single court (the UPC) for litigation relating to the infringement and validity of patents. The aim of the UPC is to enhance legal certainty by creating a unified jurisprudence, providing a single forum for patent litigation, and to improve the enforcement of patents throughout Europe.

More precisely, the Agreement on the UPC created a new specialist patents court that is common to all the participating states. This court has exclusive jurisdiction for litigation relating to UPs and even, in certain cases, jurisdiction in respect of old-style European patents (provided that there is no opt-out), and supplementary protection certificates (provided that the associated basic patent falls within the UPC’s jurisdiction). A pan-European (preliminary or permanent) injunction, as well as a pan-European revocation, has therefore become a possibility. However, the UPC does not have jurisdiction over national patents.

The UPC consists of a Court of First Instance (comprising central, local, and regional divisions), a Court of Appeal, and a Registry. Local and regional divisions have the competence to handle infringement actions, while the central division handles revocation matters and declarations of non-infringement. To encourage the use of alternative dispute resolution for patent disputes, the Agreement also established a mediation and arbitration center.

Pro-active Planning is a Must

The new system as described above is excellent in theory but it creates some significant challenges in practice. It is a system that has been created from scratch, drawing inspiration from different legal cultures, and the newly created rules of procedure are elaborate. It is clear that the management and enforcement of European patent portfolios will require pro-active planning, and given the many different angles and aspects of the UP and the UPC, most patentees and licensees will find executing a successful patent strategy challenging. Our team of lawyers is uniquely positioned to help local and international clients understand how the new system impacts their existing patent and license portfolios, and to advise them on their appropriate course of action going forward.

A Team Devoted to Your Success

Crowell is one of the few firms that have excellent and highly experienced patent lawyers across the U.S. and in Europe.

We can also rely on an international network of trusted local patent lawyers to complement our own capabilities. This network is not franchise- or alliance-based. We work together with patent partners who have been selected on the basis of our own experience working with them on many different patent matters, and we know that they provide impeccable quality at the best price.