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The German government has finally deposited its instrument of ratification of the Agreement on a Unified Patent Court (UPCA), removing the final procedural obstacle to the start of the Unified Patent Court (UPC).

Auteurs: William Salinger

The UPC will begin operations on 1 June 2023, and will have jurisdiction over questions concerning the validity and infringement of European patents (with or without unitary effect) as well as their associated supplementary protection certificates (SPCs) in the 17 EU member states who are participating in the UPCA (UPCA States). More member states are expected to join the UPC system in the future.

1. New choices of protection and forum

The brand-new “unitary patent”

From 1 June 2023, it will also be possible for a European patent to obtain unitary effect in all of the UPCA States, instead of providing protection on a state-by-state basis. On 1 January 2023, the European Patent Office (EPO) announced that applicants will be allowed to request delaying the grant of all soon-to-be-granted European patents.

For the life sciences industry, the choice between such a so-called “unitary patent” (UP) and a classical European patent (EP) will have an impact on the status of supplementary protection certificates (SPCs) depending on whether the patent the SPC is associated with has a unitary effect or not.

The long-awaited UPC

The UPC will have exclusive jurisdiction over questions of validity and infringement for UPs (and UP-associated SPCs), but will for the time being share jurisdiction over these questions for EPs (and EP-associated SPCs) with UPCA States’ national courts.