European patent protection has entered a new era. The Unified Patent Court which allows enforcement in all UPC states, so far 17 member states, opened on 1 June 2023. It is now possible to request unitary effect for new European patents; meaning they will have the same effect in all of the 17 countries. 

This is a milestone in European patent law. Work towards a unitary patent and joint enforcement has been in progress since at least the 1970s. There have been several failed attempts. In 1999, the idea was revived, and at first they wanted to include all of the countries that had acceded to the European Patent Convention. However, this was overruled by the Court of Justice of the European Union, and so it was limited to EU Member States only. Now, 24 years after the idea was relaunched - the UPC has finally opened. 

What does the new system entail?

First and foremost, the UPC will lead to quicker decisions in patent cases. Enforcement of all European patents (whether old or new) becomes more effective, as patent cases can be brought before the UPC, which will then make a decision having effect in the 17 European member states. 

It is possible to "opt out" a patent, if you do not want to be involved in central invalidity proceedings or a non-infringement case at the UPC. So far, approximately 475,000 patents have been opted out, which corresponds to about half of the granted patents. 

The Unitary Patent is expected to lead to more patents being in force with effect in Denmark, since all unitary patents will automatically cover Denmark, where, previously, patents had to be validated and annual fees had to be paid in all of the countries in which you wanted your patent to be in force. 

The road to get here has been very long and bumpy, but now you will be able to enforce your patents or request invalidation of a competitors patent with effect for all of the 17 countries in one go. 

Plesner has followed the creation of the UPC very closely and has authored the leading account on The Unified Patent Court (Den europæiske patentdomstol (DJØF, 2017), in Danish), which comprises a detailed review of the new rules and how we expect them to be interpreted. 

Patent advice from Plesner

We can help you - and have already helped many others - with all your questions about the UPC, just as we have given a large number of presentations about many different aspects of the UPC. You can also find answers to a wide range of questions on Plesner’s UPC website, which can be found in Danish and in English.  

We have a plan for how we are going to manage a UPC case. In this respect, it is necessary to know a lot about the patent rules and the UPC system and to have a large team, since there is limited time for preparations.

We have more experience than most of the European law firms, because we have been involved in more than half of all patent cases having been litigated in Denmark since 2000 (i.e. as long as our statistics go back). In addition to that, we are used to working with technical experts and drafting credible expert declarations, because in Denmark experts provide testimonies and are cross-examined in court and they therefore have to believe in what they state and be able to defend it. In many countries south of the Nordic countries, expert declarations are given little weight in general, and the experts are not cross-examined, and this might result in less technically founded and more argumentative expert declarations, which can detract from the weight given to them by the judges. 

Speed is of the essence 

You only have 3 months to file your defence in infringement cases, and 2 months to file a defence in invalidity cases. Also, the system is “front-loaded”, so you have to file all your documents as quickly as possible, which means with the first pleading. To be able to do that, you have to work quickly to find the right experts; to find the relevant prior art documents and the right arguments in relation to validity and infringement; at the same time you have to consider what impact the case will have on the market; and what you can do to lessen the damage caused by the product-in-suit or a possible injunction against the product-in suit if you defendant. 

A large patent team

Plesner's large patent team is ready to help you with any UPC case and questions. We have the largest team of attorneys and assistant attorneys specialised in patents, and we have been involved in more patent cases since 2000 (i.e. as long as our statistics go back) than any other law firm in Denmark. 12 of Plesner's attorneys and assistant attorneys are primarily specialised in patents and further Plesner attorneys and associates are also involved in patent cases. 

A large network

Owing to our leading position, we are always in contact with the best patent counsel in Europe and the US, so we will also be able to recommend relevant advisers in other countries. 

Do you want to know more?

If you have any questions or want to know more about the UPC/the Unitary Patent, please contact the Plesner patent team.