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namely whether the UK’s mandatory ratification of the Protocol can be replaced by that of Italy now that the UK has withdrawn from the Agreement, together with the related question of where the branch of the Central Division that the Agreement specifies should be in London, should now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

Prosecution history in claim interpretation at the EPO
10 June 2026
In Agathon v Intercom, the UPC's Milan Local Division confirmed that statements made during EPO prosecution are not binding but can offer low-weight guidance on the skilled person's view — here narrowing 'abuts' against the patentee.
Revocation of an order to inspect and preserve evidence as Applicant did not start proceedings on the merits, R. 198.1 RoP
09 June 2026
In Otec v Steros, the UPC's Dusseldorf Local Division revoked an ex parte inspection order after the applicant failed to sue on the merits in time, ordering all preserved evidence returned and destroyed.
UPC Court of Appeal reverses infringement ruling in both Germany and UK
05 June 2026
On 2 June 2026 the UPC Court of Appeal overturned the Mannheim Local Division's infringement findings against Kodak in both Germany and the UK, on a prior user right in Germany, and on lack of defendant liability in the UK, while upholding the validity of EP 3511174 as amended and laying down a structured framework for exercising jurisdiction over non-EU designations.