The Unified Patent Court Goes Live

The Unified Patent Court (UPC) will take up its work on June 1, 2023. It represents an absolute novelty: For the first time, one court will uniformly decide for all contracting member states on infringement and validity of European patents ("EP"). This means that as early as June 1, 2023, lawsuits to the UPC to enforce or, alternatively, destroy an EP in almost the entire European Union will be possible.

I. One Patent Court to Rule Them All

In addition to Germany, the Agreement on a Unified Patent Court will also enter into force in 16 other contracting member states: France, Belgium, Bulgaria, Denmark, Estonia, Finland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Austria, Portugal, Sweden and Slovenia. Other states such as Hungary, Spain or Poland could follow.

Decisions of the UPC on an EP have equal effect in all contracting member states. An injunction obtained before a German chamber of the UPC is thus also valid in France, the Netherlands, Italy, etc. Conversely, the UPC can also nullify an EP uniformly in all contracting member states.

II. "Sunrise Period" is Already Underway: “Opt-Out” now possible

The UPC starts with a three-month "Sunrise Period" (March 1, 2023 to May 31, 2023). For owners of EPs the beginning of the Sunrise Period brings important decisions. They now have the possibility to exclude the exclusive jurisdiction of the UPC for lawsuits in connection with EPs via a so-called "opt-out".

If an opt-out is requested for an EP, infringement and validity of the EP will have to be assessed in each member state separately. For this, the respective national courts have jurisdiction. In Germany, these are the patent litigation chambers of the district courts (for infringement) and the Federal Patent Court (for validity).

Without an opt-out, the UPC has exclusive jurisdiction for lawsuits regarding infringement and validity of an EP from June 1, 2023 onwards.

III. EP Owners Need to Act Quickly

Owners of EPs must now ask themselves whether they want to opt out of the UPC's jurisdiction. In principle, an opt-out will remain possible at least until April 30, 2030. However, if an EP is made subject to a lawsuit before the UPC, the opt-out-option will be lost irreversibly for this EP.