What’s the UPC and what’s changing?
The commencement of the new Unified Patent Court (UPC) and Unitary Patent System on 1st June 2023, was the culmination of decades of work to further harmonise and unify the patent law landscape in Europe. With the arrival of the new court, rights holders have been granted a new forum for litigation and patent enforcement which allows a single decision to have a binding effect in multiple national European states, while a single Unitary Patent (UP) can be maintained to preserve rights in all of the UPC signatory states.
From its inception in 2023, the Agreement on a Unified Patent Court (UPCA) has had effect in 17 European countries: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands and Sweden, a region home to more than 330 million people.
Now, the next generation of unitary patents has arrived and, as from 1st September 2024, Romania will become part of the Unitary Patent System increasing the number of participating member states to 18, covering almost 350 million residents and nationals. Unitary patents granted after 1st September 2024 will automatically cover Romania, avoiding the need for a separate Romanian national validation, while decisions of the UPC will have binding effect on this additional member state.
What’s not changing?
Once a unitary patent has been created, its scope becomes locked. This means that a unitary patent will only ever provide protection in countries which were part of the UP system before that unitary patent came in to being and there is no retrospective increase in effective territories for unitary patents granted before 1st September 2024.
How does this affect me?
As the scope of the UPC grows and as case law develops, proprietors and applicants of patents rights in Europe should take care to fully consider the various options open to them for optimising their patent strategy in Europe. With increasing jurisdiction and territory, the UPC and UP system provides rights holders with the tools to enforce their rights swiftly and efficiently in ever greater areas, while also simplifying and minimising the expense of validating and maintaining granted applications in multiple countries. However, with this increased potential, so too comes greater risk, with third parties being able to challenge unified patents in a single court having effect in 18 countries at once and bringing with it the risk of losing IP rights across swaths of Europe in a single blow.
WP Thompson has experienced advisors on hand to take you through the potential options open to you for securing your IP portfolio in Europe and beyond and for maintaining a strategic advantage over your competitors. If you wish to discuss this further with one of our patent attorneys, please do not hesitate to reach out via the contact form on our website, or by the other contact methods listed.