A single patent court covering 18 EU states
The new Unified Patent Court opened its doors on 1 June 2023, bringing with it big changes and new opportunities for both patent owners and their challengers. The new court was introduced alongside the new European ‘Unitary Patent’, which provides a single patent effective across 18 European Union states, with more expected to join in the future. See our guide here for more information on the Unitary Patent.
The new court has exclusive jurisdiction over revocation and infringement matters relating to the new Unitary Patent. Individual European patents in the EU member states of the court can also be litigated in the Unified Patent Court, and in the future the court will have exclusive jurisdiction over these patents as well. In the meantime, patent owners have the option of ‘opting out’ their existing and new European patents, so that they do not fall within the jurisdiction of the new court.
As European Patent Attorneys who are qualified to act before the Unified Patent Court, members of the Abel + Imray team are well placed to represent you, especially in revocation proceedings where the validity of a patent is challenged.
Using the new Unified Patent Court
The new court can allow patent disputes to be significantly streamlined. For example, if a competitor is infringing your patent, a single infringement action can be brought for infringing acts in any of the 18 member states, based on either a Unitary Patent or individual European patents. This is a big change compared to having to start separate infringement actions in the different relevant member states.
If on the other hand a party has a European patent that could be a concern to you, where it is a Unitary Patent or individual European patents that have not been opted out, it is possible to bring a single revocation action effective against a Unitary Patent or individual European patents that have not been opted out in all 18 member states, at any time after grant of a patent. This gives much more time compared to the relatively short 9-month window provided for filing an opposition against a European patent at the European Patent Office (EPO). Revocation can be sought on the grounds familiar from EPO oppositions, including lack of novelty, lack of inventive step, insufficient disclosure, and extension beyond the disclosure of the original application.
Unified Patent Court proceedings are designed to be fast, so preparation is key. The court aims to conclude proceedings within 12 months of commencement (although decisions are subject to appeal). While this may have the advantage of rapid legal certainty, successful parties need to be prepared to respond quickly with a clear focus on the issues that matter most.
In another similarity to EPO opposition proceedings, revocation actions (as well as infringement actions) start with a written procedure during which the parties are required to set out their full cases for their claims, counter-claims and defences. Following the written procedure, an oral hearing is held, with hearings usually lasting just one day.
Whether you wish to take advantage of the new court to seek revocation of a competitor’s patent, or ensure that your portfolio is ready for the challenge, Abel + Imray can guide you through that process.
Our approach
We believe that our strength lies in our collegiate and team-focused approach, which has seen us use our combined experience across technical disciplines to handle complex, multi-case opposition proceedings at the EPO. We’re also used to working in close cooperation with other legal professionals where European patents are litigated before the national courts in infringement and revocation proceedings.
As legal representatives with the right to act before the Unified Patent Court, we can be hands-on practitioners in this new forum. In some cases it can be in your best interests to draw in assistance from other trusted advisers, which is why we maintain working relationships with other advisers and litigators in the UK and across Europe.
We know that patent procedures are complex and can be daunting, especially when facing an adversary in a fast-paced forum such as the Unified Patent Court. You can rely on us to understand your commercial objectives, help you focus on what matters to you, and act quickly to get you the advice you need.
