The UPC System

Overview

The biggest change for decades in the grant and enforcement of patents in Europe has been in the making for a number of years, with the planned introduction of a new European patent system.

The new system was set to revolve around two new features: the Unitary Patent (UP) and the Unified Patent Court (UPC). The UP was proposed as a single patent right covering most of the EU as an alternative to conventional European Patents (EPs). The UPC was proposed to act as a single litigation forum for disputes involving not only UPs but also EPs.

Many EU countries had ratified the UPC Agreement, with the UK ratifying the Agreement in April 2018; however, less than one month after the UK left the EU, the UK government stated that it would no longer be seeking membership of the UPC.

An additional, and equally significant issue, is that in March 2020, the German Constitutional Court upheld a complaint against Germany’s ratification of the UPC.

These two issues have left many market commentators feeling that the UPC will now not come into being for several years, if at all: changes to the UPC Agreement will need to be re-negotiated following the UK’s decision not to participate in the UPC, which will take a considerable amount of time.

Furthermore, if the German situation does not change, then there is very little chance of the UPC ever being brought into action – originally the UK, Germany and France (as the largest patent markets in Europe) all had to ratify and agree to participate in the Agreement. If two out of these three were not part of the UPC, it would make the system unviable.

Dehns will continue to monitor all UPC developments and will update clients as and when appropriate. For further information please contact us on: upc@dehns.com