Unitary Patent Coming to Europe

With the introduction of the Unitary Patent and the Unified Patent Court (UPC), envisaged for 2016, Europe will have a single patent for 24 countries and a single court to enforce both the new Unitary Patent and traditional European patents. Patent protection is currently at the national level. Parallel to strictly national patents, there is a central system for the simultaneous prosecution of patents for 38 countries – the European Patent – but after it’s granted, patents still need to be registered in each country. Enforcement takes place in the national courts. Cross-border injunctions for the 28 EU countries are available only in exceptional situations.

Now twenty-four EU Member States have joined forces to create a single patent covering their joint territory. The Unitary Patent will have the same effect in all of these countries. In addition, a new international court system, the Unified Patent Court, is being set up. It will have jurisdiction over actions on infringement and validity of both Unitary Patents and traditional European patents for 25 participating EU Member States. Through this new court, a decision covering all 25 countries in full proceedings on the merits can be obtained in about one year.

It is important to start developing a strategy for Europe now. The patent portfolio needs to be shaped to fit the new system, including by way of decisions on prosecution, filing divisionals and maybe opt-out applications, which can probably be filed during a sunrise period starting later this year.