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The Unitary Patent System is on the way

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January 20, 2022
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We reported last year that the Unitary Patent and Unified Patent Court (UPC) were progressing. The main hurdle left to clear was sufficient countries ratifying the Protocol on the Provisional Application of the UPC Agreement to allow the provisional application to start. The Preparatory Committee has now announced that Austria has provided the necessary 13th ratification, and so the Protocol is now in force. This allows the institutions of the Court - the Administrative Committee, the Advisory Committee and the Budget Committee – to come into being, and implementing legislation, such as the Rules of Procedure and the regulations governing patent attorney representation at the Court, to be adopted. When preparations are sufficiently advanced, Germany will deposit its instrument of ratification of the UPC Agreement, and the Court will formally begin operations at the beginning of the fourth month after the date of that deposit.

There does remain a constitutional niggle to be addressed, namely whether the UK’s mandatory ratification of the Protocol can be replaced by that of Italy now that the UK has withdrawn from the Agreement, together with the related question of where the branch of the Central Division that the Agreement specifies should be in London, should now be located.

The European Patent Office has welcomed this development and has repeated the estimate that around 8 months will be needed before the Court can fully open for cases. In addition, the EPO has announced a pair of measures to allow early uptake of the system. Once Germany has deposited its instrument of ratification, applicants will be able to both request delay grant of their patents (after the Advance Notification of Grant under Rule 71(3) EPC has been issued), and to file requests for unitary effect during this period, which will take legal effect after grant of the patent and once the UPC Agreement has come into force.

Recent Case Reports

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Court of Appeal focuses on the technical effect to determine added matter
30 September 2026
The Court of Appeal provided guidance on their approach to assessing added subject matter, highlighting that the technical effect underlying the invention and how the claimed and unclaimed features contribute thereto is central to the analysis.
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Court of Appeal affirms interpretation of product-by-process features in claims, and clarifies applicable law pre-June 2023
29 September 2026
The Court of Appeal confirmed that product-by-process features in a product claim limit the claim only where the specified process imparts characteristics that can be achieved solely by that process. It also clarified the law applicable to acts occurring before 1 June 2023, holding that UPC law may apply to ongoing infringement for injunctive relief, whereas damages for acts completed before that date are governed by national law, and that claims for provisional protection remain governed by national law.
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Appeal reveals tricky deadlines for orders contained in decisions
29 September 2026
The Court of Appeal held that where a “privileged order” under Rule 220(1)(c), such as an order relating to the production of evidence under Article 59 UPCA and Rule 190 RoP, is contained within a decision on the merits, a 15 day appeal deadline for that order applies, separate from the substantive appeal deadline. Appeals challenging such orders after that deadline are inadmissible, and parties cannot circumvent the appeal rules by re-filing substantially the same request in the appeal proceedings.
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