Austrian step brings Unified Patent Court closer


German plans to ratify the UPCA were tested in the country’s Federal Constitutional Court, but the latest legal challenges were dismissed earlier this year. Germany deposited its instrument of preliminary ratification of the UPCA at the end of September. Full ratification should take place as soon as it is foreseeable that the UPC will be fully functional. The government expects the The UPCA can enter into force in mid-2022.

“German industry has always been a big supporter of the unitary patent system. So it is very good that the legal challenges in Germany and elsewhere are over so that the industry can begin to reap the benefits of the system, ”said Marc Holtorf, Munich-based Patent Law Expert at Pinsent Masons.

The UPC system will have legal effect on the first day of the fourth month after Germany’s ratification, although the precise timing of its operation remains uncertain as it depends on the start and timely completion of the application phase. provisional and the date on which Germany ratifies the UPCA.

Gougé said: “Current indications are that the UPC will become operational in early 2023, but it could be earlier – end of 2022 – depending on the momentum maintained, the smooth running of the provisional application phase and the absence of any further legal challenge or political dispute arising. which have served to delay the project to date.

“Companies each need to assess the benefits and risks of using the new UPC system. The possibility of obtaining unitary patent protection across Europe will be attractive to some companies, but others may be wary of the risk that a UPC system court ruling will void their patent rights in multiple jurisdictions ” , did he declare.

The UPC is being set up to provide a dedicated court system for litigation of new unitary patents. Existing European patents which are not specifically excluded from the competence of the UPC will also be subject to the new judicial system.

The possibility of registering unitary patents was provided for in EU law as a means by which companies can obtain patent protection for their inventions in multiple EU countries through a single, cost-effective application. The current European patent system requires that patents filed with the European Patent Office be validated in each of the countries where companies want patent rights to apply – this process involves the translation of those patents into the mother tongue of each country.

The UPC system has been in development for years. It will include a system of central, regional and local divisional courts, with a UPC Court of Appeal in Luxembourg and the EU Court of Justice (CJEU) as the final arbiter on points of EU law. with regard to disputes concerning unitary patents or non-suppressed European patents.

Originally, London was intended to be one of the three “seats” of the central division courts, specializing specifically in resolving patent disputes in the life sciences. However, Brexit means the UK is no longer participating in the new framework for unitary patents and UPCs.

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