June 1st is quickly approaching, which means Europe’s Unitary Patent Court (UPC) will soon be open for business. If they haven’t already, European patent owners should discuss the implications of the new system with their European patent counsel before the opt-out deadline of June 1st.
The goal of the UPC, part of the broader Unitary Patent System, is to offer a one stop shop for patent litigation within European Union member states; gone are the days of costly “parallel litigation” across the EU as means to enforcing patent rights. A win or a loss at the UPC will save a litigant the time, money, and effort of litigating in an additional member state forum. Nevertheless, the new system should raise some concerns for patent owners.
The new court will allow litigants only one bite of the apple. An infringement or validity ruling at the UPC will have a wide sweeping effect across the seventeen participating member states. For this reason, certain businesses have “opted-out” of the new system, rationalizing that such blanket rulings will present risk to their portfolios. Owners of existing European patents or pending applications can “opt out” for a transitional period of up to seven years, with the potential to extend the “opt out” period for an additional fourteen years. The UPC will issue patent infringement and patent validity decisions and will provide remedies such as injunctive relief and monetary damages.
Furthermore, one concern surrounding the UPC is that the engine of case law that will help power the UPC has yet to be built; the court’s doors do not open until June 1st. Some patent owners are therefore proceeding cautiously and not subjecting their crown jewels to a nascent system. However, classical European patents designated for Member States that have ratified the UPC Agreement, will automatically be “opted in” beginning on June 1st. Time is running out for European patent owners to examine their portfolios and decide whether to opt-out.
The UPC will be headquartered in Paris and Munich, with several regional divisions located in other countries. The Court of Justice of the European Union may give preliminary rulings on questions of EU law that arise during trial.
Katie Rubino is a partner and chair of the Life Sciences Practice Group at Caldwell. She is dually qualified as a U.S. patent attorney and a solicitor in England and Wales.
Tanner Murphy is a litigation team member within the firm’s Boston office.
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