The Unified Patent Court (UPC) and the Unitary Patent came into effect on June 1, 2023, so it is now possible to obtain some data and conduct a preliminary assessment.
As for the Unitary Patent, requests for unitary effect to date have exceeded 13,000, representing approximately 30% of the European patents granted during that period—a fairly significant percentage.
It is also worth noting that the most commonly chosen language for the translation of the text of the granted European patent—which must be submitted with the application for a Unitary Patent—is Spanish (accounting for 28.5% of the total). This data may indicate that many applicants for a Unitary Patent are also interested in obtaining validation in Spain, for which they can use that Spanish translation.
The EPO has made the necessary adjustments to the Register and the European Patent Bulletin in order to include the relevant information on unitary patents.
As for the TUP, there have been about 80 cases filed, spanning various technological fields, primarily in the pharmaceutical, telecommunications, and electronics sectors.
Oral proceedings have been held on infringement claims in some Local Divisions (such as Munich, Vienna, and Helsinki) and on a patent invalidity claim at the Paris office of the Central Division.
There have already been some interesting decisions. For example, the Helsinki Local Division has ruled that “opt-out” withdrawals (known as “opt-ins,” which bring a European patent back under the jurisdiction of the UPC) are not valid for those patents for which the parties had filed national claims before the UPC began operations.
In addition, the TUP Appeals Court in Luxembourg has issued its first decision, in which it ruled that the time limit within which the defendant must file a response to the complaint begins when the plaintiff has submitted all the documents.
Furthermore, it was also agreed during this period that the new section of the Central Division of the TUP will be located in Milan (instead of London, and alongside the Paris headquarters and the Munich section), although it is not expected that the Milan section will be able to receive its first cases until June 2024. The cases assigned to Milan will be those in Section A of the International Patent Classification (“Everyday Necessities”), excluding Supplementary Protection Certificates, which will fall under the jurisdiction of the Paris headquarters.
The Unified Patent Court and the Unitary Patent are now operational and in effect. We will need to keep a close eye on the UPC’s initial orders and decisions, as well as on how its various divisions apply their procedures, as these may shape the future of the system.
Pedro Saturio, European Patent Attorney. Deputy Director of the Patent Division