EU Unitary Patent and Unified Patent Court Finally Coming in 2022?

The European Patent Office (EPO) in Munich
By Kārlis Dambrāns - https://www.flickr.com/photos/janitors/13124698685/, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=90796977

After many years of delays, a Unitary EU Patent and EU Patent Court may finally come into existence in 2022.

According to the European Patent Office (EPO), the new system will offer users of the patent system a “cost-effective option for patent protection and dispute settlement across Europe.”

Currently, according to the EPO,

national courts and authorities decide on the infringement and validity of European patents. In practice, this can lead to difficulties when a patent proprietor wishes to enforce a European patent in several countries or when a third party seeks the revocation of a European patent. Litigation in multiple countries is expensive and there is a risk of diverging decisions and a lack of legal certainty. Forum shopping is often inevitable, as parties seek to take advantage of differences between national courts and their procedures.

The last stumbling block was apparently cleared when the Federal Constitutional Court of Germany rejected applications for preliminary injunctions against the ratification by Germany of the agreement establishing the Court.

According to the press summary of the court’s decision,

The Agreement on a Unified Patent Court (hereinafter: UPC Agreement) is part of a comprehensive European patent package at the core of which lies the introduction of a European patent with unitary effect as a new intellectual property right recognised at EU level. The UPC Agreement was concluded as an international treaty between the participating EU Member States. It provides for the establishment of a Unified Patent Court (UPC) as a court common to the Contracting Member States for disputes concerning European patents and European patents with unitary effect. The Agreement confers upon the UPC exclusive jurisdiction over the types of patent disputes listed in an extensive catalogue – in particular actions concerning patent infringements, disputes on the validity of patents and certain actions concerning decisions of the European Patent Office.

The concept of the Unitary Patent and Unified Patent Court were agreed to in 2013 after years of negotiations. Thirteen EU countries needed to ratify the UPC Agreement, and years of legal challenges followed.

The UK also withdrew from the EU during this period, meaning that the new UPC system will no longer apply to it.

After the new patent system comes into effect, inventors will be able to apply for a Unitary Patent that will be valid in all participating member states of the EU. Up to 25 out of 27 EU members are expected to participate. (Poland and Spain have announced they won’t.)

According to the EPO,

The UPC will provide a better framework for all parties involved in patent litigation in Europe. In particular, costs will be reduced as parties will not need to engage in parallel patent litigation in different member states. Diverging decisions from different national courts on infringement and validity of the same patent will cease as the UPC develops a truly European case law, thus enhancing legal certainty for all users.

More information about the new system is here.