A Changed Landscape for Patents in Europe
5th July 2023
Patents have long been a key tool in the armoury for protecting innovation, but a challenge for those who trade across borders is that patent rights have historically been enforced on a country-by-country basis, meaning that cross-border enforcement is complex and expensive. This has been true in Europe even after the introduction some decades ago of the European Patent Office (EPO), which provides a central process for the grant of patents for all EU states and a range of others, including the UK.
The introduction of the Unitary Patent (UP) and Unified Patent Court (UPC) on 1 June 2023 has fundamentally changed this landscape, providing the option to centrally litigate patent rights across the participating countries (initially 17 countries, including France, Germany, Italy and the Netherlands) in a single action. This represents the biggest shake up of the international patent system in decades, marking the culmination of many years of attempts at harmonisation.
What is changing if I am looking to protect my invention?
Since this is a change that affects the post-grant patent landscape, the process for obtaining patents is relatively unaffected. To obtain patent rights in Europe, you can still file at the EPO using European Patent Attorneys based in the UK. Outside of Europe, your patent attorney can advise you on the most suitable strategy using the procedures that have been in place for some years. As well as the EPO, national patent offices, such as the UK Intellectual Property Office, also remain open for business – the right option for you will depend on your budget and business needs.
The difference comes when the EPO grants the patent – at that stage you now have the option of obtaining a European patent with unitary effect, or ‘unitary patent’ (UP), for participating countries, instead of the “classical route” which requires individual “validation” in each country. This could save significant sums if protection across a wide range of European countries is desired.
The classical route stills remains open, so the UP is just a choice for obtaining protection in the countries taking part. For those countries not taking part (including non-EU countries like the UK, but also some EU countries like Spain and Poland), there is effectively no change, meaning that you can still file with the EPO as usual in order to obtain protection throughout Europe.
Is there something I need to do if I already own patents in Europe?
The key change for those who already hold patents is that you are now able to enforce your European patent in all participating countries at the Unified Patent Court (UPC) rather than individually in each country. This means higher potential damages in a single action, and a more powerful injunction. The value of your European patents is therefore potentially increased (while the Unitary Patent may reduce the cost of obtaining broad coverage in future).
It’s important to note that the UPC is available not only for Unitary Patents but also for European patents that had been validated on a country-by-country basis in the past. This means that this is a change that affects everybody who holds patents in any participating country, and rights holders must understand what this means for them and their assets.
In particular, there is a potential threat associated with the new system for patent proprietors. This is because not only does the UPC allow patent proprietors the ability to enforce their patents across multiple territories in one action, but it also provides others with the option to attack patents in multiple countries simultaneously in the same way. If you would like to protect your patent portfolio from this kind of central “revocation” action, you have the option to “opt-out” your patents from the UPC. In most circumstances, an opt-out can then be withdrawn at a later date if it becomes desirable to utilise the UPC for enforcement purposes.
For more information on the Unitary Patent & Unified Patent Court and what you should do next, please contact Anton Hutter, a UK & European Patent Attorney (firstname.lastname@example.org) based in Stirling House on the Surrey Research Park in Guildford.