Rule
Simply do nothing. Your European patents will thereby also fall under the jurisdiction of the new European Unified Patent Court ("UPC"). And in most cases, that's a good thing.
Exception 1
If a granted patent is only validated in two participating countries (e.g. Germany and France), or even only in one country (e.g. Germany), then an opt-out often makes sense. Reason: In that case an enforcement of this patent before the new UPC is too costly. It is better to stay in the national court system.
Rule
Yes. There are many advantages of a unitary patent:
- 17 countries for the price of 4.
- Enforceability also in countries where this has been difficult to do nationally.
- Cross-border issues are better captured.
- Only one invalidity procedure, everything is dealt with together. This ensures faster legal certainty. If things do go badly, at least the matter is closed.
Exception
You only need the patent in a few countries, and/or in countries which do not participate in the unitary patent. For example, if you need a patent in Germany, Spain (does not participate) and the UK (no longer EU, so does not participate either), then the unitary patent is of little help, and enforcement in the new court would be costly. So better validate nationally or even apply nationally.
17 countries for the price of 4
17 countries for the price of 4
The following “standard countries” are included:
Germany, France, Italy, Netherlands.
Numerous medium-sized countries are included as a bonus:
Belgium, Bulgaria, Denmark, Finland, Austria, Portugal, Sweden.
And furthermore, the unitary patent will be valid in
Estonia, Latvia, Lithuania, Luxembourg, Malta, and Slovenia too.
And that's all for the fees that you normally pay for four countries.
That's a pretty good argument, we think.
Enforcement improved in many countries
Enforcement improved in many countries
Have you ever enforced a patent in Bulgaria? No? Ever heard of anyone who has successfully done so? Also no? Neither have we. And in Denmark and Sweden enforcement has also been time-consuming and expensive until now.
With the unitary patent, you can often sue in Germany and, if you win, the ruling also applies to Bulgaria, Denmark and Sweden (for example). This opens up new possibilities!
In addition, cross-border cases used to be fragmented. Each country required something different to effectively stop the patent infringement and get adequate damages. This was true even if you sued in two or more countries. With the unitary patent, one lawsuit is enough and nothing is missing. It does not matter what the infringer has done in Sweden or what he has done in Germany. Everything is covered.
That’s good.
Central invalidity action – we think it's good
Central invalidity action – we think it's good
Many lawyers have reservations about the so-called central invalidity action. True, with the UPC, the entire patent can be invalidated with a single invalidity action. But does that speak against a unitary patent an in favor of an opt-out? Our opinion: No! Quite the opposite.
We see the central invalidity action above all as an opportunity to have the legal status of the patent confirmed promptly and with effect for 17 countries. This creates considerable legal certainty. Consider the opposite case: Which patent owner, with rare exception would try his luck in Austria after the patent was declared invalid in Germany? For most companies, that would not be a sensible investment. The current fragmented patent system does not bring any practical advantages for most companies. Better to be unified and centralized. Exceptions may apply to pharma originators and to non-practicing entities.
Let’s be realistic - enforcement costs
Let’s be realistic - enforcement costs
The enforcement of a unitary patent will be more expensive than one is used to in German court proceedings. Our estimate: About twice as expensive. But that’s no wonder: You also get a lot more for it. A judgment with effect for many countries, with legal certainty.