1st June: the dawn of a new era in the European patent system

30 May 2023

The new Unitary Patent system and the Unified Patent Court entered into force on June 1, 2023, and with them comes a real revolution in the world of European patents.

30 May 2023

A new era began On 1 June 2023, that will forever change the landscape and practice of patent law in Europe. On that day, the new system of the Unitary Patent (UP) and the Unified Patent Court (UPC) will enter into force. It is important to note that the new UP will coexist with the classical European patent and the national patents of the EU member states and therefore the UPC will not replace the existing system but complement it.

This new system rests on two legs. On the one hand, the Up itself, which is a patent title that, for the time being, will provide uniform effect in 17 countries and, on the other hand, the UPC that will provide users with a forum whose judgments will be of direct and homogeneous application in the 17 aforementioned countries. The new system is open to other EU countries and is likely to further increase its geographical scope as long as the countries that participated in the enhanced cooperation leading to its creation ratify the Unified Patent Court Agreement (UPCA). It is even possible that EU countries that did not participate in the enhanced cooperation, such as Spain, for example, may decide to join in the future.

The history and problems of a long road of the Unitary Patent

The advent of the new system may seem logical and even inevitable from the perspective of a European market that seeks harmonisation and legal certainty in order to improve its global competitiveness. This might lead one to think that its gestation has been a simple matter, but nothing could be further from reality. The implementation of the new UP system has been a tortuous path full of obstacles that has taken nearly 50 years to become a reality.

In fact, achieving a patent with a unitary effect in EU countries is a task that has been sought since the origins of European patent law.

The first attempt to create a common patent project for the countries of the then European Economic Community (EEC) was made in the 1970s, but the so-called Community Patent was never approved. Instead, the current European patent system was established through the European Patent Convention, which was signed at the diplomatic conference in Munich in 1973 and came into force in October 1977. This Convention, however, was forged as a multilateral treaty between countries that established the European Patent Organisation and the European Patent Office as an autonomous body for the granting of European Patents.

Subsequently, in the 2000s, there were further attempts to revive the Community Patent. The so-called Community Patent Regulation (CPR) envisaged, in addition to a unitary patent title, the need for a single court to decide on the validity of patents. However, the underlying linguistic debate and the suspicions of some member states about the competence of the European Patent Court resulted in a failure to reach unanimous agreement.

The final push for the UP began to take shape in early 2011 when 25 EU countries (all except Spain and Italy) asked the European Commission to develop a Unitary Patent system, through the enhanced cooperation mechanism, given that unanimous support from all EU countries seemed impossible. The subsequent negotiations resulted in the so-called “Unitary Patent Package”, which included EU Regulations 1257/2012 and 1260/2012, which underpin and regulate the UP system, and the UPCA, which regulates the jurisdiction, structure, competences and other aspects relating to the UPC.

However, this was not going to be so simple as Spain filed lawsuits against the regulations implementing the “Unitary Patent Package”, which, however, were dismissed in 2015 by the Court of Justice of the European Union.

When it seemed that the way was clear for the implementation of the new system, there were several chapters that seemed to endanger it even further.

On the one hand, the United Kingdom, which had already ratified the UPCA and had been one of the main promoters of the new system, announced in July 2020 that it was withdrawing its ratification as a logical consequence of Brexit.

On the other hand, in Germany, another of the driving forces, several unconstitutionality lawsuits were filed against the laws for the approval of the Unified Court agreement. The first of these lawsuits filed in 2017 by Dr. Ingve Sterna was successful, however, it was only a bump in the road because in June 2020 the German Government, strongly committed to the new UP system, quickly presented a new Law for the approval of the UPC Agreement that was endorsed without problems by 88% of the Chamber. Subsequently, during the further processing of this law, two appeals of unconstitutionality were filed, which were finally dismissed on 9 July 2021.

These were the last attempts to “sabotage” the birth of the UP. From this point onwards, two historic milestones determined the imminent entry into force of the system.

The milestones that made the Unitary Patent possible

The first of these came on 19 January 2022 when Austria ratified the Provisional Application Protocol (PAP) to the UPCA, becoming the thirteenth country to do so, and automatically and officially giving birth to the Unified Patent Court.

The second of these milestones occurred on 17 February 2023 when Germany deposited the instrument of ratification of the UPCA and automatically triggered the start of the so-called “Sunrise Period” which began on 1 March 2023 and will end on 1 June with the definitive entry into force of the new system.

Therefore, from 1st June there will be a dramatic revolution in the European patent system.

The big change that will come after June 1

Of course, the existence of a UP providing “pan-European” protection will be a major change and, in many cases, will represent a significant cost saving for applicants opting for this type of patent.

However, the real revolution in my view, and what is really a radical and irrevocable change, is the implementation of the UPC. The change is radical because for the first time the states participating in the new system have transferred sovereignty in patent matters to a supranational court. And it is irrevocable in that it cannot be reversed. The countries that have delegated patent jurisdiction to the UPC have done so not only for UPs but also for classical European patents. The possibility to circumvent the jurisdiction of the UPC will exist only for classical European patents and only for a limited period of time. Only those classical European patents for which the opt-out is requested during the transitional period (minimum 7 years and maximum 14 years) will circumvent the jurisdiction of the UPC.

After the end of the transitional period, any classical European patent that has not opted-out will be unavoidably subjected to the jurisdiction of the UPC. In other words, in the long term, European patents, either with unitary effect or not, will be judged by the UPC, with the jurisdiction of national courts being limited to national patents only.

It will be interesting to see over the coming decades whether this will have an impact on the strategy used by applicants to protect their inventions. In recent years, we have seen how applicants have been opting for the European patent route to the detriment of national patents. Who knows whether the emergence of the UPC may give a second life to the National Patent Offices and may not only slow down this trend, but even reverse it. Only time will tell what this new era will bring.

5/5 - (1 vote)

Iñigo Pradera

Graduate in Biology and Biochemistry.European Patent Attorney by Examination: EQE.


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