A new EU patent court and a new unitary patent will soon significantly expand the possibilities for protecting inventions for EU states. Seventeen states have already ratified the treaty and are on board when both instruments launch shortly.
The new unitary patent
With the new unitary patent, patent protection will be achieved jointly for all participating EU states. It differs from the previous European bundle patent, which, once granted by the European Patent Office (EPO), breaks down into national patents that are then valid individually in each state.
For the unitary patent, as for the European bundle patent, a patent application must be filed with the EPO. If the EPO intends to grant a patent, the applicant must in future opt for a unitary patent or a bundle patent.
Due to its pan-European scope of protection, a unitary patent is a powerful IP right. Only US patents or Chinese patents cover similarly large economies. This feature makes the unitary patent particularly attractive for inventions that are simultaneously manufactured or offered as products or services in many EU countries. Patent-infringing imports from third countries can also be prosecuted more effectively with the unitary patent.
The new Unified Patent Court (UPC)
The new Unitary Patent Court (UPC) will be responsible for infringement proceedings and for proceedings concerning the validity of the new unitary patent. Proceedings on the European bundle patent, provided it has been validated in one or more participating EU states, can also take place at the UPC.
The UPC will specialise solely in patents. The first instance will comprise a central chamber as well as regional chambers and local chambers. This will spread the court to the participating EU states.
The central chamber will have branches in Paris and Munich and probably in Milan. Inventions in the fields of mechanics and mechanical engineering will be handled by the central chamber in Munich, and inventions in the field of electrical engineering by the central chamber in Paris. Germany will also be represented in the UPC by local chambers in Düsseldorf, Mannheim, Hamburg and Munich. These are also the locations of Germany's national courts with the most experience in patent litigation. The branch of the central chamber and the four local chambers make Germany the EU state most strongly represented in the UPC.
Another innovation of the UPC is the inclusion of technical judges. In the first instance of infringement or nullity proceedings, at the request of a litigant, a judge with technical qualifications will be assigned to the three judges with legal qualifications. It is expected that said assignment will take place in each proceeding. The Court of Appeal in Luxembourg will therefore even include two technical judges, equal to the three legally qualified judges.
On the personnel level, the UPC has already positioned itself excellently. In an extensive application process, 34 judges with legal qualifications were appointed, 12 of whom come from Germany. Of the 51 designated judges with technical qualifications, 15 are from Germany. All designated judges are experienced and highly respected personalities in the patent world. Without a doubt, these personalities will also give the UPC a German character.
The combination of patent law expertise of judges from different EU countries should be the strength of the UPC.
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