The Game-Changer: Unitary Patent System in IP Sector

The Unitary Patent System (Unified Patent) is a legal system in Europe aimed at simplifying and harmonizing intellectual property protection. It allows businesses and inventors to obtain a patent that applies in multiple European countries without the need to apply for separate patents in each individual country. In this blog article, Gertie Schouten elaborates on five key insights about the Unitary Patent Court (UPC) and the Unitary Patent (UP).

Gertie Schouten studied Dutch law and Spanish language and literature at the University of Amsterdam and the Universidad Autónoma in Madrid. She was a journalist for national radio stations and newspaper Trouw, among others, before specializing in IP affairs. Since 2014, she has been writing about the Unitary Patent system for the Kluwer Patent Blog.

5 takeaways from the early UPC days

It has without any doubt been the biggest change in the IP sector this year and probably this decade: the start of the Unitary Patent system on the first of June. Developments are being followed widely and although it is still very early to draw conclusions, here are five takeaways about the UPC and UP.

Couleur locale?

What role will there be for the ‘couleur locale’ of the different divisions of the UPC? Two examples which point in a different direction.

There has been quite a lot of attention for two cases in which 10x Genomics was granted and denied, respectively, a preliminary injunction versus rival NanoString. It was the UPC’s first PI in a case were an oral hearing was held with both parties. In the second case the panel of judges was not convinced of the infringement of 10x Genomics patent; the reasoned decision of the first case gives some clarity about the criteria of the court regarding validity: ‘The Local Division is also satisfied with a clear preponderance of probability that the patent in suit is valid.’ And: ‘Insofar as Respondents argue that under German case law, the revocation of the patent did not need to be predominantly likely for the prognosis of legal validity in proceedings for provisional relief, but merely possible due to the respondent’s nullity submission, this case law handed down on national procedural regulations is not relevant within the scope of application of the UPCA and the RoP.’

In other words, the call on the judges of the Munich local division to take into account this German ‘couleur locale’ was in vain in the above case, whereas it was clearly present, according to this analysis, in the reasoning behind two ex parte orders to preserve evidence, issued by the Milan local division on 13 and 14 June 2023 (Oerlikon vs Himson, one and two). ‘The decision to grant the measure ex parte, and the dispensation of a security requirement, are commonly seen in Italian orders granting descrizione.’

Cross-jurisdictional, multinational litigation teams

How European will the new UPC be? In a recent podcast Johanna Flythstrom, who is specialized in IP and technology, is very positive about this. ‘There is really a sharing of experiences. It seems that users, judges and attorneys alike all want to see how the new system works and ensure for their part that it has a good start.’ Although it is clear that German divisions dominate the new system, she pointed out a particular point: ‘Many users have opted to use cross-jurisdictional, multinational litigation teams for the first UPC filings. The new court is not only for attorneys of the major patent litigation jurisdictions. This supports the development of a truly European wide system’, Flythstrom thinks. ‘Perhaps they want to ensure that the litigation teams will present arguments from different legal traditions for the court to consider as it is formulating the new practice.’

Reversal of opt-out: Helsinki division says ‘no’

The Helsinki local division drew attention when it rejected an injunction request by AIM Sport against Supponor, because the reversal of the opt-out of the patent in dispute was deemed in contradiction with the UPCA. As national litigation in the UK and Germany concerning the same patent is still pending, the judges found that the opt-out could not be reversed. They rejected AIM’s view that opt-out article 83(4) UPCA refers to national proceedings filed after the entry into force of the UPC. One wonders whether all users realized this when they opted out patents.

Content management system below standard

Then a practical issue: The functioning of the content management system is problematic. Before the start of the UP system, people had a hard time accessing the CMS using the obligatory strong authentication, as was dramatically described by European patent attorney Thorsten Bausch, among others. It delayed the start of the UP system by two months. In the so-called sunrise period, there were huge problems with opting out patents from the jurisdiction of the UPC. At the moment there is frustration about the lack of information about UPC cases. The level of transparency is far below standard, in the words of patent attorney Joeri Beetz, who decided to build a UPC search site himself. The court’s Registrar, Alexander Ramsay, said in a reaction that ‘a lot of effort has been put into the court’s CMS (…) The issue of transparency is very important (…). In the coming weeks and months we will further improve (…) the system for displaying orders, decisions and timing of court hearings.’

The Unitary Patent is more popular than expected

Finally, the Unitary Patent. The EPO publishes information about UPs on this dashboard, which shows that in 3,5 months over ten thousand have been registered. As was pointed out here, on the average 115,000 patents are registered by the EPO each year. If the registration rates don’t change, it means UPs will represent approximately 30% of all registered patents. Before the start of the system, there were doubts whether the UP would be a success, as it entails less flexibility and a risk of central revocation, for instance. Most UPs concern infrastructure & mechanics (20,3%), materials & production (19,7%) and health (19,1%) technology, which means the life sciences sector, contrary to expectations, isn’t reluctant to use the UP either.

Wolters Kluwer Legal & Regulatory U.S, International Group provides legal practitioners, corporate counsel and business executives with comprehensive legal information and tools. Kluwer IP Law is the master resource for Intellectual Property rights and registration, now offering a dedicated hub on the Unitary Patent (UP) and the Unified Patent Court (UPC). Equip yourself by utilizing the UPC Case Law Tracker. This tool furnished patent rulings from the UPC, expert analysts comprehensively document and summarize cases.

Wolters Kluwer Germany / Kluwer Law International

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