Intellectual Property Law Blog

What the UPC Means for Your Patent Strategy

June 16th, 2016

What-the-UPC-Means-for-Your-Patent-StrategyBy Martin G. Belisario, Esq.

The process for securing patent protection and for enforcing patent rights in the European Union soon will become much simpler, opening up a new patent portfolio management strategy that previously might have been out of reach of many small and medium-sized IP-driven companies.

The Unified Patent Court, which 25 EU member countries agreed in 2013 to create, is expected to begin operating in 2017. The agreement has been ratified by 10 EU member states  and needs only three more, for a total of 13, to officially come into being. In anticipation of full ratification, a preparatory body is well into the process of establishing the court’s rules and procedures.

New IP Possibilities for Smaller Companies

For companies that depend on patents to protect their intellectual property, particularly small and medium-sized companies, the advent of the Unified Patent Court could open up Europe as a viable market that previously might have been closed to them for cost reasons. Now, patent rights in the EU must be enforced in each individual member state. This can become exorbitantly expensive for most companies, and, with interpretations of patent law varying from court to court, forum shopping for a favorable jurisdiction has become commonplace.

The Unified Patent Court was proposed in order to solve those problems, providing a single legal forum and appeals path for all patent disputes within EU member states – except, perhaps, in Spain and Poland, which were not signatories to the 2013 agreement.

How the UPC will work in practice is less clear, even among the signatory member states. If the system works well, everyone will benefit. Having to enforce one’s intellectual property rights in only one court system will be significantly less complex and less expensive than doing so in multiple EU member states, as is necessary now.

Moving Towards Ratification?

The Unified Patent Court’s launch is not yet inevitable. Germany, France, and the United Kingdom must be among the 13 member states to ratify the agreement, and as of this writing, only France has done so. As the United Kingdom prepares to hold a June 23 referendum on whether to leave the European Union entirely, it is not unreasonable to wonder whether the 2017 time frame is realistic.

That said, companies that already are pursuing patent protection in Europe cannot afford to wait until the Unified Patent Court begins operating. Public disclosure of an invention starts the clock ticking for EU patent filing deadlines, and that clock will not pause while we all wait to see whether and when the Unified Patent Court will open its doors.

If and when the court does begin operating, it will change the landscape of international patent protection for decades to come. If you have questions about how the new Unified Patent Court may impact your patent portfolio strategy, contact an international patent attorney at Panitch Schwarze Belisario & Nadel at 888-291-5676.

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