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What Will Introduction of the UPC Mean For Patent Owners?

Publications / Dec 29, 2015

The European patent reform package aims to bolster the EU’s internal market by providing a pan-EU dimension to the patent system in the form of a unitary patent and a Unified Patent Court (UPC), thereby reducing the market fragmentation caused by differences in procedural and substantive patent law. Users of the UPC are expected benefit from a unified jurisprudence and greater legal certainty, as well as judgments with effect in all the contracting member states. Some users may nevertheless prefer patent litigation before national courts, where decisions are only valid in the relevant jurisdiction.

However, the main driver of the reforms has been costs. The European Commission hopes that the new system will reduce costs for patent owners, applicants and litigants, and that the perceived disadvantages in the current system, to smaller entities such as SMEs, will diminish, thereby increasing access to justice in the field of patents. It is also hoped that the reforms will enhance the role of patents in supporting innovation and investment, and aid business growth.

A recent decision on renewal fees for unitary European patents reflected the wish for the new system to be cheap for users and competitive with the current European patent. When faced by various financing options for the unitary patent, the relevant committee at the EPO adopted the cheapest of the renewal fee options presented to it, and adopted a fee structure slightly cheaper than the corresponding renewal fees of four states under the current cost regime. This means that for the same price as a European patent renewal in four countries under the current system, the owner of a unitary patent will be able to maintain its patent in an area covering all participating EU states (ie 28 countries if all EU countries eventually ratify). The decision on renewal fees is likely to increase the attraction of unitary patents and, ultimately, may increase usage of the UPC.

The UPC court fees have (at the time of drafting this text) have not been decided, but look likely to be set at a level in keeping with fees in a single national proceedings. One advantage of a unified court over the current system is the elimination of parallel national proceedings, whereby a case is heard before two or more national courts at the same time. Although relatively unusual, parallel proceedings under the current system have caused the duplication of costs and made litigation prohibitive for many users.

Procedures at the UPC are designed to be streamlined and simple, and in many cases much quicker than current national patent proceedings. A further advantage for users is that decisions will be directly enforceable by national authorities, as if the decision had been by a national court.

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