Countdown begins as Germany ratifies Unified Patent Court agreement

Biggest development in European IP law for decades will see new court open on 1 June
Central Munich Old Town

Munich, home to the European Patent Office

Germany has deposited its instrument of ratification of the agreement on a Unified Patent Court (UPC), launching the countdown to the opening of the new court on 1 June 2023.

Germany’s ratification opens the UPC’s case management system initiating the court’s sunrise period starting on 1 March.

The start of the sunrise period means businesses have three months to decide whether to take their patent out of the UPC system before full commencement and lodging representatives’ credentials with the new court’s registry.

The UPC and unitary patent is the biggest development in European IP law since the European Patent Convention in 1973.

The new system will enable uniform patent protection across all participating EU members states by way of a single patent application filed with the European Patent Office (EPO) in Munich - the unitary patent - and provide a centralised platform for Europe-wide patent litigation before the UPC.

The court is composed of judges from all participating member states of the European Union. Currently, 17 member states have joined the UPC system; the court will decide on infringement and validity of both unitary patents and classic European patents.

Welcoming the news, EPO President António Campinos said, "The deposit by Germany opens the door for a new era of IP protection in Europe. Under the unitary patent system, European businesses will be able to benefit from broader and more effective patent protection at lower costs, which is particularly important for smaller entities.”

The UPC was first agreed in 2013 but has been held up for years by the uncertainty caused by Brexit, when the UK decided to leave the project, and by the domestic ratification process of member states. Germany’s ratification is a major hurdle that has now been cleared in this long, tortuous road.

Businesses that anticipate having to defend their patents may wish to exercise their opt-out. Opting-out would prevent competitors from ‘knocking-out’ their patent across Europe in a single judgment, making it easier to defend their patents from challenges.

Partner at Mathys & Squire Andreas Wietzke, says: “UK businesses need to seriously consider whether it is best for them to opt-out of the UPC now that the sunrise period has begun."

He added: “For existing patent holders, it could mean an increased risk that their IP will be challenged, with a single judgment able to ‘knock-out’ patents that had applied in several jurisdictions across Europe.

“The ease at which patents could be challenged may incentivise competitors to gamble and discover if they can disrupt their competition now that it is more convenient and cheaper to do so. UK businesses have three months to decide how to best protect their IP before the UPC goes into full effect.”

The UPC website provides further details on the opt out procedure, the opt-out can only be made in respect of all states for which the European patent has been granted or which have been designated in the application. Furthermore, an opt-out is only possible as long as no action has been brought before the UPC in respect of this application, patent or supplementary protection certificate.

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