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Pankhuri Malik is an IPilogue Writer and an LLM Candidate at Osgoode Hall Law School.

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The IPilogue reported in September 2021 that with , the Unified Patent Court (“UPC”) may become a reality by 2022. Now, on January 19, 2022, became the 13^th Member State to ratify the Agreement, clarifying the timeline for the UPC. Austria’s ratification triggered the protocol’s and kicked off the Provisional Application Period (“PAP”).

The PAP is expected to last anywhere between eight and twelve months, subject to the time required to finish the preparatory arrangements for the UPC to commence operations. While Germany has enabling legislation for the UPC, its ratification is yet to be officially communicated. It is expected that once the Member States are with the preparations for the UPC, Germany will deposit its instrument of ratification.

, the EU patent regime requires the patentee to have its patent (granted by the European Patent Office) validated in the Member States individually. Thereafter, any claim of infringement and/or invalidity is required to be prosecuted through separate legal proceedings in all nation states. The UPC, through its agreement to set a single and specialized patent regime, with its accompanying regulations, consolidates the national patents into a streamlined process. Under the UPC, innovators will be able to enforce their patents in a single court. Similarly, invalidation proceedings will also be adjudicated upon in the UPC, removing the need for parties to prosecute their patent rights individually in all member countries. Further, the cost of renewal of one UPC patent is expected to be equivalent to roughly the sum of national renewals in the top four EU countries.

At the moment, the UPC has 25 signatories and 16 Member States, including Austria, have ratified it. Once Germany’s ratification document is received, the UPC will commence from the after receipt of the document. This could happen as early as September 2022. The UPC is expected to commence operations in .

At the moment, since the practicalities of the UPC are still unknown, it is understandable that innovators may be apprehensive to avail the jurisdiction of the UPC immediately. The Agreement therefore provides for an “opt-out” period. In other words, innovators may be able to avail one of the :

1. Proceed under the jurisdiction of the UPC;
2. Opt out of the jurisdiction of the UPC and continue to avail patent rights under the regime in place; or
3. Opt for a hybrid system, where an existing European patent may be validated under the UPC and separately through national validation in non-Member States.

As of now, this transition period is only valid for seven years, and is further extendable by another seven, after review at the five-year mark.

The work to prepare for the commencement of operations of the UPC is being conducted by the (“Committee”). The Committee is comprised of all Member States to the Agreement, and its accompanying regulations. At the outset, the Committee is undertaking work under 5 broad heads:

1. The legal framework;
2. Financials;
3. Information technology;
4. Infrastructure; and
5. Human Resources.

However, the Committee is a short-lived endeavour and will only survive for as long as preparatory works are still underway.

Under Article 24 of the Agreement, the UPC will on Union Law, the UPC Agreement signed by the Member States, the Convention on the Grant of European Patents, and other international agreements applicable to patents and binding on the Member States. Alongside, the UPC will also take national law into consideration.Ěý Under the hybrid system mentioned above, any existing patent rights that may be validated under the UPC will continue to be governed by national laws.

Now that the UPC has become a reality, almost a decade after it was first conceptualized, it is expected that the European patent landscape will drastically change. For one, the holistic costs of securing patent protection in the EU are projected to drop by almost %. Similarly, the timeline for securing a patent and litigating its infringement and validity is also expected to significantly drop. All in all, with the removal of administrative barriers to securing patent protection, we should expect to see a substantive increase in patent applications in the EU.

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Meena Alnajar is anĚýIPilogueĚýWriter, IP Innovation Clinic Fellow,Ěýand a 2L JD Candidate atĚýOsgoodeĚýHall Law School

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Updated 30 September 2021

Patents can help inventors gain protection and recognition for their innovations, but patent litigation can often subject patentees to high costs and lengthy court proceedings. Europe may be on the cusp of a more efficient adjudication process with its proposed Unified Patent Court (UPC). , the UPC is an agreement among 24 countries to create a single expert patent court to undertake patent adjudication with binding effect across all contracting European states. Currently, all European Union (EU) countries , and Croatia have signed on. This means that the UPC could enforce rulings affecting over 300 million people. that the UPC is a dream, due to several delays in its initiation. Yet Germany’s of the Agreement on a Unified Patent Court (UPCA) announced on August 18, 2021 may bring the UPC into reality.

Germany is one of the , alongside France and Italy. The UK was previously in the top three, but since . In fact, the , as the country is such a key player in the European patent arena. With Germany’s recent ratification, the UPC hopes to initiate its operations . Will a Unified Patent Court increase accessibility to the patent process or create new roadblocks?

If the UPC rules on a patent infringement matter, this ruling would be binding across 24 EU states. In theory, this increased patent protection should benefit patentees. But at the same time, it may also leave patentees open to facing patent invalidity suits within the UPC, which would invalidate the patent across all member states. To this end, the , where patentees can opt-out of the UPC’s jurisdiction, thereby preventing invalidity challenges within the UPC but also leaving the patentee in the position of having to litigate infringement on a country-to-country basis.

Another potential benefit of the UPC is more expedient legal proceedings. The UPC can , minimizing duplicate actions across countries and preventing the risk of contradictory judgements. Further, one court should amount to one cost. The UPC may help reduce patent litigation costs by centralizing litigation. With reduced costs and time, perhaps the UPC is the ideal model for adjudicating patent protection matters for the future.

Many steps are still many steps involved before the UPC’s grand opening in mid-2022. Some member states must sign on to ratify the UPC and there are protocols that . But if the UPC does become a reality next year, having a court with a binding effect on 24 countries can help patentees settle international patent disputes in one court. The UPC’s continentally binding effect could provide patent rulings that are faster and cheaper for European patent holders.

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