Unitary Patent and the Unified Patent Court

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Unitary Patent and the Unified Patent Court

By Evangelia Manika, Associate LLB. MSc.

The Unitary Patent and the Unified Patent Court (UPC) represent the most fundamental change in EU patent law over the last 50 years and came into force on 1 June 2023. From then on, the new unitary patent system will allow applicants to follow not only a single approach for their patent registration in order to obtain a single patent, but also a single approach for the relevant litigation procedure so that any disputes will be heard by a single court – the UPC.

Until now, patents in Europe have been, and continue to be, available either through national patent offices, which examine the applications under their national laws and, if accepted, result in national patents, or through the European Patent Office (EPO). An application to the EPO requires validation in each Member State where the applicant wishes to obtain protection, i.e. more national patents, and separate renewal fees must be paid to patent offices in each Member State.

Moreover, if an international dispute arose in Europe, the litigation procedures would have to be conducted in several countries in parallel. Thanks to the new UPC, disputes can now be brought before this international court specialised in the enforcement of both traditional European Patents and Unitary Patents. In particular, for traditional European Patents registered in the participating Member States, the UPC will in principle be an optional venue for patent litigation alongside the national courts and can decide on infringement and validity for all of these registered European patents. For Unitary Patents, on the other hand, the UPC will be the only choice for litigation and can decide on infringement and validity for all participating EU Member States. For the national patents, national courts remain the only option for litigation.

It is worth noting that the main aim of the Unitary Patent and the UPC is to reduce costs and logistics and to provide a simpler and more effective way of obtaining EU patent protection, as well as to increase transparency, while significantly reducing the need for parallel litigation.
The new type of European patent (Unitary Patent) will cover up to 24 EU Member States which have signed the Agreement on a Unified Patent Court (UPCA) but is currently in force between the 17 participating EU Member States which have ratified the UPCA. The remaining seven EU Member States, which have only signed the UPCA, may ratify it at any time. As a result, the Unitary Patent is not an is not an EU-wide patent, but it enhances cooperation between the signatory EU Member States with a broad European approach.

In this context, Greece is not currently one of the 17 EU Member States that have ratified the UPCA. Consequently, the UPC will not have jurisdiction over Greece until Greece fully ratifies the UPCA. In the meantime, unitary patents granted by the EPO will have to be validated in Greece in order to be effective in the country. Furthermore, Greece does not currently have a local UPC division, but it is very possible that Greece will have one in the near future and possibly after ratification of the UPCA.
However, even if Greece ratifies the UPCA, there will be a transitional period of seven years before the UPC has exclusive jurisdiction over such disputes – this period may be extended – and in the meantime Greek national courts will have jurisdiction over such patent disputes. The crucial question is therefore whether it is worthwhile for a European patent holder to validate his patent in Greece, with the risk that the UPC, which is a centralised judicial authority with exclusive jurisdiction in such matters, will not take over any litigation, and secondly, how someone who wishes to protect his patent both in Greece and in the other 17 EU Member States should proceed.