01 June 2023
Today, 1 June 2023, marks the launch of the Unified Patent Court (UPC) and the Unitary Patent (UP) system after many years of preparation by the European Union and its members. As of today, the UPC has jurisdiction for patent litigation throughout the 17 member states which have ratified the Agreement on a Unified Patent Court (UPCA). From today onward, newly-granted European patents can also be brought into force as Unitary Patents, providing coverage for the 17 UPC member states through a single validation.
Any existing European Patents that have not been opted out are now automatically subject to the UPC’s jurisdiction. However, you can still choose to opt your patents out throughout the initial transitional period of at least seven years, provided that those patents are not subject to litigation at the UPC. Once opted out, patents will be subject to the jurisdiction of the competent national courts instead. Opt-outs can also be registered for pending European patent applications.
During the three-month sunrise period which ended yesterday, a total of nearly 474,000 patents and patent applications were opted out. Although precise figures are hard to calculate, it has been estimated that this represents somewhere between about 40 and 60% of all eligible patents and patent applications, with the number expected to continue to rise now that the court is open for business. It will be very interesting in the coming weeks and months to see how widely the UPC is adopted as a forum for patent litigation instead of national courts, and to see if any sectoral trends begin to emerge.
In other news which was announced at a late stage of the sunrise period, it has been confirmed that (subject to a confirmatory vote by the UPC’s Administrative Committee) Milan will host the third branch of the UPC’s Central Division, which was relocated from London due to Brexit. However, no formal announcement has yet been made as to which cases will be handled in Milan, and it seems that the Milan branch will not be opening just yet. For the time being, therefore, cases at the UPC’s Central Division will be split between Paris and Munich as we reported previously.
With our patent attorneys eligible to practice before the UPC as registered European Patent Litigators, our team at Mathys & Squire is well equipped to assist you in carving out your individual filing and litigation strategy. As we step into the unknown, we are thrilled to watch the new system change patent litigation forever, and to be part of shaping its course.
Read more about UPs, the UPC and opting out of the UPC here.
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