New European patent with unitary effect from 1 June 2023

The creation of the European patent with unitary effect (“Unitary Patent”) and the establishment of the Unified Patent Court (“UPC”) will soon create new possibilities for obtaining and enforcing patent protection in the European Union. Start date of the new system will be 1 June 2023.

European patents in force will fall under the jurisdiction of the new UPC by default with the start of the new system. This will allow for centralized revocation proceedings but also centralized infringement proceedings covering all national parts in the participating member states. In order to avoid these centralized proceedings, an exception to the jurisdiction of the UPC can be requested (so-called opt-out notification). By this notification, the jurisdiction for revocation and infringement actions remains with the respective national courts as before. The opt-out notification can already be filed within a period of 3 months before the entry into force of the Agreement on a Unified Patent Court, i.e. from 1 March 2023.

From our point of view, this opt-out notification could be recommendable in many cases, as the proceedings under the new system are expected to become more time-consuming and cost-intensive and it is not yet foreseeable whether the case law will be patent owner-friendly or not. In addition, the opt-out notification can also be withdrawn once at a later time (so-called opt-in).

Please contact us if you need advice or further information.