What steps should I take now?
If you have not already done so, you need to start considering your strategy as to whether you want to opt-out your EPs from the jurisdiction of the UPC.
Your review should consider the following issues:
- the strength of the relevant patents;
- the value of the technology covered by each patent or patent family to the business in the relevant jurisdiction;
- how your various patents interact to protect your commercial products;
- the likelihood in your industry that a third party will attack the validity of your patents;
- for patents that are jointly owned or licensed into or out of the business — who has the right to exercise the opt-out of the EPs (and any associated SPC)?
This exercise needs to be done sufficiently ahead of the launch of the UPC in order to give you time to execute any opt-out during the sunrise period. If you decide to exercise the opt-out, it is important to ensure that the correct party or parties exercise that opt-out to ensure that it is validly executed. If you fail to validly opt-out, then there is a risk that competitors might seek to revoke the patent centrally at the UPC.