THE UNIFIED PATENT AGREEMENT WILL COME INTO EFFECT ON JUNE 1, 2023

On February 17, 2023 Germany has deposited its instrument of ratification of the Unified Patent Agreement making it definite that the agreement will come into effect on June 1, 2023 and that the sunrise period will commence on March 1, 2023 .

This means that as from June 1, 2023 it will be possible for European patents granted  after that date to secure a unitary patent covering  for Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Slovenia and Sweden as an alternative to the traditional bundle of patents.  The traditional route resulting in a bundle of patents remains the only option or all other member countries that are members of the European Patent Convention.  If a unitary patent is desired, it will be necessary to advise the EPO of this within one month of the grant and supply a full translation of the patent into the language of another EPC-member state within the same time period.  Such unitary patents will be subject to the exclusive jurisdiction of the new Unified Patent Court.

The coming into force of the Agreement also means that unless the owner has filed a declaration opting out of the jurisdiction of the new Unitary Patent Court any patent in the countries listed above that originated from a European Patent Application irrespective of when it was granted will be subject to the concurrent jurisdiction of the new court and the appropriate national court until an action is brought before either of them, at which time that court will have exclusive jurisdiction. In this context, it should be noted that revocation actions against a patent subject to the jurisdiction of the Unified Court can be brought before that court at any time during the life of the patent and there are no standing requirements limiting the persons who may file such an action.  If an owner has opted out of the jurisdiction of the Unified Patent Court, national courts retain exclusive jurisdiction.

Declarations that an owner is opting out of the jurisdiction of the Unified Court may be filed with the Court Registry at any time after the sunrise period commences on March 1, 2023.  If there are different owners of patents in different countries arising from the same European Patent application, all of the owners of the different patents must agree to the opt-out.