Entry into force of the provisional application protocol of the UPC: we take stock

Ip world
Publié le 23 February 2022

Almost 50 years after the creation of the European Patent Office and further to the recent filing of the instruments of ratification of the Provisional Application Protocol by Austria, the preparations for the establishment of the Unified Patent Court (UPC) have finally started.


This is the perfect time to take stock of what will change when these preparations are complete.


The patent with unitary effect

The start of the UPC will also be that of the unitary effect of the European patent. It will then be possible for you, when a European patent is grated, to request unitary effect from the European Patent Office (EPO) and thus obtain protection in at least 17 European countries (1).


With such an effect, the European unitary patent obtained will be managed centrally with the EPO which will administer both the collection of the single annual fee (2) and that of the patent register.


Such a unitary effect will be optional and you will always have the possibility of going through an individual validation of your European patent only in the countries that are of interest to you. The two possibilities are not mutually exclusive since this individual validation will remain the only option for certain countries including, not least, the United Kingdom, Switzerland and Spain.


Unified Patent Court

The Unified Patent Court (UPC) whose head office will be based in Paris will be the juridiction dedicated to the European patent with unitary effect.


In the long term it will also be solely competent for European patents not benefiting from unitary effect. In the latter case the UPC will make it possible to obtain a decision application in each of the countries in which the European patent has effect.


Nevertheless, during a transitional period of 7 years renewable once, without action on your part and with regard to all of your European patents not benefiting from the Unitary effect, you will have the possibility of acting both at the level of the UPC and at the national courts, the first action taken allowing the competent jurisdiction to be defined.


During this transitional period, you will also have the possibility of forcing the competent jurisdiction by filing at the UPC either an « opt out » request, giving the national courts sole jurisdiction, or an « opt in » request making the UPC competent.


Given the uncertainties about the UPC and its future decisions and the risks of losing all protection in Europe, the request for an « opt out » should not be neglected. We are of course at your disposal to study the advisability of filing such a request for all or part of your European applications/patents.


Thus the implementation of the UPC and the unitary effect will allow the creation of European patent as such, i.e. effective throughout Europe, just like the implementation of the Community trademark earlier.


Of course Brandon IP is mobilizing to support you in all these changes and we will continue to inform you in due course of the next developments related to the UPC and the unitary effect..


  1. Countries that have already ratified the agreements as of 7 February 2022 : Germany, Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Slovenia and Sweden. Countries awaiting ratification as of 7 February 2022 : Cyprus, Greece, Hungary, Ireland, Czech Republic, Romania and Slovakia.
  2. Equivalent to the total of the annual fees paid in the 5 most validated countries.


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