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Geographic Scope of the UPC and Unitary Patent

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February 22, 2023
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The grant of a European Patent allows patent rights to be obtained in respect of over 35 states by means of the respective validation procedures for those states. These include EU member states and non-EU states.

The scope of the UPC and a Unitary Patent corresponds to a subset of those EU member states. Currently, these are:

  • Austria (AT)*
  • Belgium (BE)*
  • Bulgaria (BG)
  • Denmark (DK)*
  • Estonia (EE)*
  • Finland (FI)*
  • France (FR)* _ UPC Central Division (Paris)
  • Germany (DE)* _ UPC Central Division (Munich)
  • Italy (IT)* _ UPC Central Division (Milan)
  • Latvia (LV)*
  • Lithuania (LT)*
  • Luxembourg (LU) _ UPC Court of Appeal
  • Malta (MT)
  • Netherlands (NL)*
  • Portugal (PL)*
  • Romania (with effect from 1 September 2024)
  • Slovenia (SI)*
  • Sweden (SE)*

*location of Local/Regional Divisions of the UPC

Note that the geographic coverage of a Unitary Patent is fixed at the grant date. Countries which signed up to participate in the unitary scheme after the grant date of a Unitary Patent are not included in the geographic scope.

This geographic scope of the UPC can vary over time as more states participate.

For a granted EP patent which is in force in any of the above states and which has not been opted_out, an action (e.g. infringement or revocation) in the UPC will be effective in respect of those states.

Proceedings for infringement in another state or for revocation of the national patent of any other state must be brought in the respective national court.

In the first nine months after grant, the EPO Opposition procedure provides a mechanism for centralised revocation for the entire bundle of all national patents (including those within the scope of the UPC) and any unitary patent resulting from a single granted EP patent.

To obtain protection in other EPC states, such as the UK, Poland or Spain, or where a Unitary Patent has not been requested, the existing validation procedures for obtaining national patent rights (which can be enforced in the respective national courts) remain unchanged.

Additional states which may participate in the future include Cyprus, Greece, Hungary, Ireland, and Slovakia. Of these, Ireland is the most likely to participate.

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The Court of Appeal held that setting aside a first-instance decision granting relief subject to recurring penalties generally has retroactive effect. Any penalty fees already paid will be refunded by the Court. The value of proceedings is determined by the interest of the party that brought the action. This is not changed as a result of an appeal. A claimant bringing enforcement proceedings while an appeal is still pending does so at its own risk and may be liable for the defendant’s costs related to the enforcement proceedings.‍
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The Local Division Munich invalidated Promosome's licensed mRNA patent over Scripps' codon-optimisation method, then found BioNTech's Comirnaty vaccine would not have infringed the claims even had they been valid.
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