What are the advantages and disadvantages?
- For the first time, patent owners will be able to obtain a patent with true unitary effect throughout Europe. However it is only member states of the EU that will participate in the unitary patent - not all members of the EPC. In addition only 13 countries are required to participate for the system to be effective. Spain is not participating. Therefore traditional European Patent applications or national patents will still be required for the same coverage as the EPC.
- Pan-European injunctions will be available through the UPC - at present infringement actions need to be brought in in individual states where an EP is validated.
- For companies that validate their EP applications in many jurisdictions, a UP may be cost effective.
- A UP will be subject to central revocation. It therefore becomes easier for third parties to revoke patents. This is not ideal for important patents. At present, after the expiry of a nine-month opposition period, European patents can only be revoked at a national level in each country where the EP is validated.
- The cost of obtaining a UP may well be more expensive than current filing strategies, if for example patentees usually validate in 3 or less states, or validate only in London Agreement states to save translation costs.
- It will not be possible to be selective as to EP countries which are maintained throughout the life of the patent.
- The rules of the UPC are quite complex in terms of where cases are heard, the language of proceedings and the law to be applied. We expect that clients may want to avoid the court until its effectiveness has been demonstrated.