Germany has on 17 February 2023 ratified the Agreement on a Unified Patent Court (UPC), confirming that the long-awaited unitary patent system will start on 1 June 2023.

The new system allows inventions to be protected by a single unitary patent in 17 EU countries. Currently, the countries participating in the unitary patent system include Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, and Sweden.

Sunrise period beginning on 1 March 2023, and UPC opt-outs

Before the UPC can start operating, there will be a ‘sunrise period’ beginning on 1 March 2023. During the sunrise period, European patent holders will have the possibility of filing an opt-out request for their existing European patents which have been validated in one or more of the UPC member states.

Opting out during the sunrise period is important for those patent holders wanting to avoid the centralized jurisdiction of the UPC, which will apply to all validations of a European patent in the UPC member states. If an opt-out request is filed by the patent holder, all litigation concerning the opted-out European patent will take place only in national courts of law according to the traditional European practice.

Some important points to consider

• Opt-outs and opt-ins: Decide whether to opt out your existing European patents.
• Pending European patent applications: Decide whether to register your pending EP applications after grant as unitary patents or as national patents through the traditional validation process (and file the respective opt-outs). If you are looking for patent protection in at least three of the above-mentioned UPC countries, registration as a unitary patent will save costs. A unitary patent registration will cover all of the 17 UPC countries.
• Competitor monitoring: In addition to focusing on your own patent portfolio, it may also be useful to monitor your competitors’ UPC strategies in order to prepare for their future actions.

For more information, please contact our Folke Johansson, Director (Patents), European Patent Attorney.