The Unified Patent Court (TUP) and the Unitary Patent were launched on June 1, 2023, so it is already possible to obtain some data and make a preliminary assessment.
Regarding the Unitary Patent, requests for unitary effect to date have exceeded the figure of 13000, which represents approximately 30% of the European patents granted in that period, that is, a quite significant percentage.
It is also worth noting that the language most chosen for the translation of the text of the granted European patent, which must be provided with the request for the Unitary Patent, is Spanish (with 28,5% of the total). This data may be an indicator that many Unitary Patent applicants are also interested in validating in Spain, for which they can take advantage of this translation into Spanish.
The EPO has made the appropriate adaptations to the Registry and the European Patent Bulletin in order to include the information corresponding to Unitary Patents.
As for the TUP, the number of cases presented is about 80, from various technological fields, mainly in the pharmaceutical and telecommunications and electronics sectors.
Oral hearings have been held on infringement claims in some Local Divisions (such as Munich, Vienna or Helsinki) and on a patent invalidation claim at the Paris headquarters of the Central Division.
There are already some interesting decisions. For example, the Helsinki Local Division has interpreted that “opt-out” withdrawals (so-called “opt-ins”, to bring a European patent back under the jurisdiction of the TUP) are not valid for those patents for which the parties would have filed national claims before the TUP began to operate.
Likewise, the Court of Appeal of the TUP of Luxembourg has issued its first decision, in which it has established that the period within which the defendant must present the defense to the claim begins when the plaintiff has submitted all the documents.
On the other hand, in this period it has also been agreed that the new section of the TUP Central Division will be Milan (instead of London, and together with the Paris headquarters and the Munich section), although it is planned that it will not be until June 2024 when said section of Milan can receive its first cases. The cases assigned to Milan will be those of Section A of the International Patent Classification (“Ordinary Necessities of Life”), excluding Supplementary Protection Certificates, which will be the responsibility of the Paris headquarters.
The Unified Patent Court and the Unitary Patent are already operational and underway. We will have to be attentive to the first orders and decisions of the TUP and to the application of the procedures carried out by its different Divisions, which can mark the future of the system.
Pedro Saturio, European Patent Attorney. Deputy Director of the Patent Department
