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Getting ready for the UPC and the unitary patent

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The European patent system will undergo wholesale reform in June 2023. Jakob Pade Frederiksen of Inspicos explains what the changes mean for proprietors and applicants

The most significant legislative change in the European patent landscape becomes effective on June 1 2023.

From that date, the newly established Unified Patent Court (UPC) will have exclusive jurisdiction over infringement and revocation actions in respect of European patents, including nationally validated patents and future patents with unitary effect.

Proprietors

Under Article 83 of the Unified Patent Court Agreement (UPCA), proprietors of European nationally validated patents may, however, opt out from the exclusive jurisdiction of the UPC, unless an action has already been brought before the UPC.

During a sunrise period which commenced on March 1 2023, an opt-out from the jurisdiction of the UPC can be filed with the court. Proprietors wishing to benefit from the possibility of opting out are well advised to file their opt-out requests well in advance of June 1 2023.

Representation before the UPC is mandatory; parties may either be represented by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office (EPO) and who have appropriate qualifications, such as a European Patent Litigation Certificate, or by lawyers authorised to practise before a court of a contracting member state.

Applicants

In respect of future patents, requests for unitary effect are to be filed with the EPO at least one month after grant. Transitional measures implemented by the EPO provide the possibility for applicants to file a request for unitary effect before entry into force of the new system. Once the unitary patent system has started, the EPO will register unitary effect. Furthermore, applicants may request a delay in the EPO’s issuing of the decision to grant a European patent until immediately after the entry into force of the unitary patent system.

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