Patent Revolution: Unitary Patent And Unified Patent Court

• Jurisdiction: European Union
• Law Firm: Havel & Partners s.r.o.
• Subject Matter: Intellectual Property, Patent
• Author: Mr Robert Ne'půrek, Ivan R'me', Tom' Pavlica, Kateřina Trzaska and Tom' Havelka
• Published date: 21 July 2023

As of 1 June 2023, the Unitary Patent (UP) system will become effective. With it, a brand-new institution - the Unified Patent Court (UPC) - will be established. As a result, the mechanism will introduce the biggest change in the area of patents in decades and will affect all European patents, also those already in place. Are you ready?

The Czech Republic has not yet ratified the necessary documents. Thus, the key changes will not yet apply in the Czech Republic. Nevertheless, the UP system will also have a significant impact on the foreign patent portfolios of Czech entities. Existing European patents will be subject to the jurisdiction of the UPC with the exception of opt-outs, i.e., where patent application or patent is excluded from the exclusive jurisdiction of the UPC.

Since the UPC is still a big unknown for patent owners, it is high time to consider whether to let the UPC decide disputes or to keep the current system of national decision-making and thus opt out. It is possible to opt out without any restrictions until 31 May 2023, but even after that, an opt-out will also be possible except for proceedings already opened before the UPC.

When and how will it be possible to opt out? And what are the other changes that need to be taken into account?

Before the unitary patent

Until now, the term European patent was used to provide a system of protection of an intangible asset by means of individual national patents obtained on the basis of a single European application. Under this regime, after the patent has been granted, it had to be validated in each country separately. This included submission of translations, payment of maintenance fees, etc.

The current set-up could lead to paradoxical situations, where, for example, the Polish Office revoked a patent granted on the basis of an identical European application, while the Czech Office kept the patent valid. Although filed jointly, the patents were completely independent of each other in accordance with the principle of territoriality of industrial rights protection. It was up to the individual national bodies to make a decision on their validity. And the approaches often differed from one to another.

If you wanted to enforce your patent rights against your competitors in court, you had to file lawsuits in each country for each patent separately.

Simply put, the UPC system will enable transferring the decision-making on these disputes to the UPC. Although the idea of a single proceeding before the...