29 November 2021

The Unitary Patent approaches the finish line: What’s next for patent owners?

Good things come to those who wait. After years of seemingly little to no progress and challenging negotiations, and with the Unitary Patent (UP) being on the verge of introduction several times, the time has finally come. Despite many hurdles, unforeseen detours, and some political headwind, the way now seems clear for the UP.

The Unitary Patent and the Unified Patent Court (UPC) seemed set to be on the verge of introduction a few years ago. However, various political imponderables such as Brexit – with the subsequent exit of the UK from the EU and thus also the UP and the UPC – as well as legal hurdles such as the lawsuits against ratification of the UPC before the German Federal Constitutional Court, have delayed its implementation. In July 2021, the long-awaited decision of the Federal Constitutional Court removed the last obstacle to said ratification. Despite federal elections taking place the same year, Germany swiftly ratified, so that the three required states with the highest number of European patents filed – France, Italy and Germany – had thus taken the decisive step towards the UPC and the UP coming into effect. After a range of further national ratifications, the final required national decision is now awaited for 2 December 2021 with the ratification of the UPC being on the agenda of the Austrian Federal Council.

With the political hurdles regarding the ratification process thus overcome, implementation of the UPC and the connected UP can finally commence. However, the main effort still lies ahead:  administrative structures now have to be created and the required staff must be hired and trained.

Patent owners will now be able, and are in fact required, to do their part as well, as far as considerations and decisions are concerned. Even if the actual UPC start date is not likely before 1 January 2023, the likely advantages and risks of the new system are already known. As the UP is closely interlinked with existing European patent law in terms of its structure, it is advisable for patent owners to take a closer look at this linkage and to consider its effect on existing patent portfolios as well as on the future filing strategy in more detail.

Due to the multitude of possible patent uses, as well as varied market and competitor scenarios, no general recommendation can be made regarding UPC opportunities and risks. Rather, a detailed analysis of the individual business’ entire IP situation is required. This is the only way to ensure that patent owners are fully prepared prior to the introduction of the UP, both with a view to their portfolio and comprehensive overall strategy. This can range from active use of the UP; to a ‘wait-and-see’ approach while requesting to opt-out; to possible avoidance strategies through national applications. Regardless of the approach, at least there is now some clarity around the long-delayed start of the UPC so that patent owners can get prepared.

Click here to read the above article in German.