One World, One Patent: Germany’s Recent Ratification May Make the Unified Patent Court a Reality by 2022

Meena Alnajar is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School

Updated 30 September 2021

Patents can help inventors gain protection and recognition for their innovations, but patent litigation can often subject patentees to high costs and lengthy court proceedings. Europe may be on the cusp of a more efficient adjudication process with its proposed Unified Patent Court (UPC). First proposed in 2013, the UPC is an agreement among 24 countries to create a single expert patent court to undertake patent adjudication with binding effect across all contracting European states. Currently, all European Union (EU) countries except Poland, Spain, and Croatia have signed on. This means that the UPC could enforce rulings affecting over 300 million people. Some critics posited that the UPC is a dream, due to several delays in its initiation. Yet Germany’s recent ratification of the Agreement on a Unified Patent Court (UPCA) announced on August 18, 2021 may bring the UPC into reality.

Germany is one of the three most patent intensive states in the EU, alongside France and Italy. The UK was previously in the top three, but since exiting the EU last January, Italy has taken its place. In fact, the UK’s exit delayed the UPC’s initiation, as the country is such a key player in the European patent arena. With Germany’s recent ratification, the UPC hopes to initiate its operations in mid-2022. Will a Unified Patent Court increase accessibility to the patent process or create new roadblocks?

If the UPC rules on a patent infringement matter, this ruling would be binding across 24 EU states. In theory, this increased patent protection should benefit patentees. But at the same time, it may also leave patentees open to facing patent invalidity suits within the UPC, which would invalidate the patent across all member states. To this end, the UPC agreement includes an ‘opt-out’ plan, where patentees can opt-out of the UPC’s jurisdiction, thereby preventing invalidity challenges within the UPC but also leaving the patentee in the position of having to litigate infringement on a country-to-country basis.

Another potential benefit of the UPC is more expedient legal proceedings. The UPC can centralize revocation and infringement actions, minimizing duplicate actions across countries and preventing the risk of contradictory judgements. Further, one court should amount to one cost. The UPC may help reduce patent litigation costs by centralizing litigation. With reduced costs and time, perhaps the UPC is the ideal model for adjudicating patent protection matters for the future.

Many steps are still many steps involved before the UPC’s grand opening in mid-2022. Some member states must sign on to ratify the UPC and there are protocols that still need to be finalized. But if the UPC does become a reality next year, having a court with a binding effect on 24 countries can help patentees settle international patent disputes in one court. The UPC’s continentally binding effect could provide patent rulings that are faster and cheaper for European patent holders.