17 February 2023

Germany gives go ahead for Unified Patent Court – signalling long-awaited start of new EU patents system

Germany has finalised its approval of the Unified Patent Court (UPC), opening the UPC’s case management system and kicking off the court’s sunrise period from 1 March. The start date for the UPC is now 1 June 2023.

Germany’s move brings closer the biggest development in European IP law since the creation of the European Patent Office in 1977. The UPC has been an aspiration for the EU for half a century with several attempts at introducing a single European patent court blocked over the years before a breakthrough was finally made in 2013. Following a number of other challenges over the last few years, the UPC is on the precipice of finally coming into force.  

The UPC – presiding exclusive jurisdiction over European patent litigation – means businesses will only need to make one legal claim to enforce their patents across Europe. Costs will reduce so much that they will be comparable to making a claim in only one country previously. The new process will also make it more convenient to enforce patents across Europe for UK and EU businesses.

The start of the UPC’s sunrise period means businesses have three months to decide whether to opt their patents out of the UPC before full commencement. Businesses that anticipate having to defend their patents may wish to exercise their opt-out. Opting out would prevent competitors from ‘knocking-out’ their patent across Europe in a single judgement, making it easier to defend their patents from challenges.

Andreas Wietzke, Partner at Mathys & Squire says, “UK businesses need to seriously consider whether it is best for them to opt out of the UPC now that the Sunrise Period has begun.”

The UPC has long been a dream for the EU and provides many benefits for those wanting to enforce their patents across the single market. But for existing patent holders, it could mean an increased risk that their IP will be challenged, with a single judgement able to ‘knock-out’ patents that had applied in several jurisdictions across Europe.

The ease at which patents could be challenged may incentivise competitors to gamble and discover if they can disrupt their competition now that it is more convenient and cheaper to do so. UK businesses have three months to decide how to best protect their IP before the UPC goes into full effect.

The UPC was first agreed in 2013 but was held up for years by the domestic ratification processes of member states. Germany’s final approval of the system means that it is set to become fully operational in three months once the sunrise period elapses.