Unitary Patents and the Unified Patent Court After many a false start, Europe is finally on the verge of a radical overhaul of its patent system, with the bringing into being of the Unitary Patent (UP) and Unified Patent Court (UPC). However, while the philosophical underpinnings of this change are based on simplicity, the practical implementation will be anything but, at least initially. That said, there is nothing to fear, and perhaps a great deal to gain, for those who are able to navigate it effectively. The following is a brief guide to the key points to note. Current status The so-called “Provisional Application Period” for the UP/UPC system came into effect on 19 January 2022. This allowed the formation of various bodies necessary to complete the preparations for the system to go live, in particular the Administrative Committee of the UPC which will formally adopt the Rules of Procedure of the UPC and oversee a process for hiring judges and other practical arrangements. The start date for the new system will be the first day of the fourth month after Germany formally completes its ratification process, which will provide users with some official notice before the system is in place. At present, the Administrative Committee has hinted that the start date may be as soon as October 2022, although commentators generally consider this ambitious, and it would not be surprising if this were delayed by a few months.
The case for change Currently, the European patent system which has proved so effective over the years is based on the European Patent Convention (EPC), which established the European Patent Office (EPO) and a harmonised approach to prosecution of patent applications to grant (and some post-grant procedure, notably Oppositions). However, this was only ever conceived as part of the story. Obtaining patent rights is useful only if those rights can in principle be
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effectively enforced. While the EPO has been a huge success providing a harmonised European approach to the first part, Europe has to date lacked a central body able to offer the latter. As a consequence, “European patents” today are in fact a bundle of national rights. After grant at the EPO, a patent is “validated” in one or more European states, and then enforced individually in each of those states. There is a cost to this, even in the absence of any active patent enforcement: the cost of validation varies from country to country, although costs have fallen in many states since the London Agreement in 2000 led to a significant reduction in translation requirements in many states; and granted patents must be renewed annually in each validated state. Once patents are enforced, the costs of multiple proceedings in separate countries are clearly undesirable (albeit in practice generally avoided) and still worse is the possibility of conflicting decisions on the same patent rights in different jurisdictions. In a platonic ideal world, a single grant process would lead to a single patent enforced by a single court system. In reality, the shadow of this ideal we see by the flickering firelight is not so geometric in form.
A new Europe The European patent system is full of “you know it when you see it” fudges and shortcuts. The EPO will ask you to prove you solved
a “technical” problem but will not define “technical”. However, the real elephant in the room is the word “Europe” itself, which has a geographical definition but is often used as shorthand for the European Union. Neither of these match either the European patent system today, or the parts of Europe covered by the UP and UPC. The EPC, and thus the EPO, covers 38 states, including all of those in the EU and ten others, including the United Kingdom as well as countries like Switzerland, Norway, and Turkey. The proposed changes have no impact on any existing EPO activity. As such, these countries will continue to cooperate in all European patent procedure up to grant. While EU membership is irrelevant to the current European patent system, only EU members will be taking part in the new elements. The driving forces behind the UP/UPC project are in tune with those of the EU. If you want a single market across the EU, with common rules applied, then it is logical to wish to see intellectual property rights applied in a harmonised manner. Today, goods on the market in, for example, Germany may infringe a European patent, while the same goods in a neighbouring EU state may not, for no more complex a reason than the patent has not been validated there. As such, the market on each side of the border is not the same. One might expect therefore, that the UP and UPC would be EU-
