The permanent (i.e. non-transitional) provisions apply to unitary European patents, SPCs, European patents which have not lapsed at the date the Unified Patent Court Agreement comes into force or was granted after that date and European patent applications pending or filed after the Agreement comes into force.
However under Regulation EU no 1257/2012 relating to the unitary patent, a European patent for which unitary effect is registered in the Register for unitary patent protection shall have unitary effect only in those participating Member States in which the Unified Patent Court (which is a court common to the Contracting Member States (see footnote 1)) has exclusive jurisdiction at the date of registration.
Thus the permanent provisions will never apply to:
(i.e. they will never apply to European patents for:
For a transitional period of seven years after the date of entry into force of the Unified Patents Court Agreement the following may be brought before national courts or other competent authorities:
- Actions for infringement or revocation of a European patent (see footnote 2);
- Actions for infringement or a declaration of invalidity of an SPC.
This transitional period may be extended by the Administrative Committee for a further seven years.
Unless an action has already been brought before the Unified Patents Court, a proprietor of or applicant for a European patent granted or applied for prior to the end of the transitional period, and holders of SPCs, have the ability to opt out from the exclusive competence of the unified patents court (see footnote 3).
This notification must be notified to the Registry at least one month before the end of the transitional period – and may be withdrawn (unless an action has been brought before a national court).
It is not known if there will be any fee associated with this opt-out (and, of course, if there is, how much it will be).
See supplementary documents for further information on:
1. Article 1 of the Unified Patent Court Agreement – see above
2. This does not include European patents with unitary effect.
3. Article 83(4) of the Unified Patent Court Agreement
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.