Patents (UPC)

The most significant impact upon patent rights in the UK and in the EU as a whole lies in relation to the UP (Unitary Patent) and the UPC (Unified Patent Court). While the EPs that are granted by the EPO can cover multiple convention states[1], they are in essence a ‘bundle of national rights’. This means that when granted they are treated as if they were individual national patents. Save for a nine month opposition period where the validity of an EP can be challenged centrally before the EPO, a finding of infringement/validity of an EP in one country has no impact (beyond prejudice) on a finding of validity/infringement of an EP in another territory (i.e. there is no single right and single court).

For the past few years, the EU has been striving to introduce a Unitary Patent (a patent that will apply across the whole of the EU akin the EUTM for trade marks discussed above) and a Unified Patent Court (which will enable decisions on the infringement and/or validity of the Unitary Patent to be determined on a pan-European basis over the full lifetime of a patent).

The ‘going live’ of the UP and UPC turns on rules relating to the EU Member States’ ratification of the UPC Agreement. Prior to the UK’s referendum this was likely to happen next year.[2] This is now likely to be delayed as a key stage was the UK’s ratification of this agreement. Indeed there is also suggestion that the UP and UPC will simply not progress further due to the importance of the UK as a patenting and litigation territory.

  • [1] The signatories of the European Patent Convention are greater than the Member States of the EU.

  • [2] Ignoring the start of the opt-out period