A new, and very important, patent right will soon come to Europe, changing how UK businesses can protect their products abroad. Mark Elmslie and Daniel Muranyi from HCR Hewitsons’ Intellectual Property dispute resolution team outline the changes and their effect on UK businesses.
From later this year, the rules governing patents across Europe will change, with the introduction of a unitary patent (UP) across most EU member states. This will introduce a single patent right, allowing businesses to protect their rights across multiple EU member states efficiently and at limited expense.
Many UK businesses own European Patents (EPs) – these apply to a number of EU, and non-EU, states and are granted following a single application to the European Patent Office. However, they are applicable, and can be revoked, in each member state.
While UPs won‘t replace them, once the new system is introduced, applicants for EPs will be able to opt for UP status on grant, bearing in mind that the UP will only apply in EU member states that have signed up. Under the UP, if protection is revoked in a single member state, that protection will be lost across all participating member states.
There will be a transition period between the old system and the new – for seven years (although it may be extended) both the national patent courts and the Unitary Patent Court (UPC) will share jurisdiction for validity and infringement actions, although you can choose to assign that power to the national court. After the transition period, the UPC will take over existing EP patents and applications. Patents applied for in and granted by the UK Intellectual Property Office will continue to be applicable in the UK.
This makes the UPC a very important institution for those dealing in patented products across Europe generally.
Although the UK has now withdrawn from the EU, UK businesses will naturally still be affected by these reforms. You may own and want to enforce UPs or be subject to claims concerning them. Similarly, you may have rights in or be subject to claims arising from EPs.
National patent rights will continue in the UK, but if you do business across Europe you will need to consider what rights (UK and international) to maintain and apply for, and to take account of the UPC’s jurisdiction. Now is the time to review your patents.