To opt out or not to? Patent holders facing tricky question
After years of discussions, negotiations and planning, the Unitary Patent System, consisting of the Unitary Patent and the Unified Patent Court, was finally launched last week. It builds on the existing system with European patents (the European Patent Convention) and works in parallel with it.
The aim of the Unitary Patent is to make the European patent system less complex and expensive for patent holders by providing the same protection in all 17 participating EU Member States currently adhering to the system (Finland, Austria, Belgium, Bulgaria, Denmark, Estonia, France, Germany, Italy, Latvia, Lithuania, Luxemburg, Malta, the Netherlands, Portugal, Slovenia and Sweden). While traditional European patents are enforced in each designated country respectively, the Unitary Patent System intends to make enforcement more effective across all participating Member States by centralizing it to the Unified Patent Court (UPC), which has exclusive jurisdiction to disputes relating to Unitary Patents.
Holders of traditional European patents may opt out of the UPC’s jurisdiction during a transitional period having commenced on 1 June 2023 and lasting for seven years. After opting out, the possibility of centralized enforcement and revocation of a European patent is ruled out, as it can only be done in each designated country respectively. The uncertainty surrounding the new and untested patent system, as well as the wish to avoid the risk of centralized revocation of the patent, may cause many current European patent holders to opt out of the system. It will be interesting to follow the strategic decision-making on opting out within companies having European patent portfolios.
For companies operating on the European market, it will be increasingly important to have a clear understanding of how the new patent landscape will work in practice, to develop the company’s patent and IP strategies to reflect the changes in the system. At Vestra our IP team can help you navigate the new European patent landscape to mitigate risk and to utilize the new opportunities granted by the system.
