Update on the Latest Developments regarding the UP/UPC There has recently been a significant decision of the German Federal Constitutional Court on the Unitary Patent/Unified Patent Court (UP/UPC) proposals. This decision removes one of the final hurdles to the implementation of that system. The UP/UPC proposals are designed to harmonise the patent litigation landscape across the European Union and, as a corollary, address some of the inefficiencies of the current validation process. Should they come into effect, they may have a profound effect on the patent litigation landscape in Europe. Please do get in touch with one of our attorneys if you would like to discuss any of the points raised below.
is separate from the EU and covers 38 member states, which include all 27 states of the EU and 11 other countries (including the United Kingdom). Through this, grant of European patent applications is handled by the European Patent Office (EPO). This process will be unaffected. Thus, European patent attorneys, whether based in the UK or elsewhere, will continue to act before the EPO to obtain granted patents in the existing way. Existing routes to grant at national offices remain unchanged.
Prosecution of patent applications in Europe
When an application is granted by the EPO, the resulting patent is then validated in states of interest resulting in a bundle of national patents. Those national patents are then litigated in the national courts of individual member states. It is these phases of validation and litigation that may be affected by the UP/UPC package.
The first thing to note is that prosecution to grant of patent applications in Europe remains unchanged. The existing European patent system is based on an intergovernmental treaty (the European Patent Convention) which
20
Proposed UP/UPC system The proposed UP/UPC system has two aspects: 1. The Unitary Patent (UP) After a European patent is granted, it will be possible to request unitary effect and thereby obtain a UP for those member states of the EU in which the UP/UPC system has effect (at present 15 states have ratified). The aim here is to reduce validation costs and subsequent renewal costs, but in practice a cost saving is only likely to arise in comparison with validating in four or more member states under the current system. It will remain possible to choose to validate conventionally in individual member states and this, of course, will continue to be the approach taken for states that do not participate in the new system, such as the UK. Thus, for example, a granted European
