European patents granted on or after the date of entry into force of the package will be able to choose a unitary patent.
If the patent needs to avoid the UPC, the patent can be classically validated and an opt-out filed. This will maintain the current status quo. If the patent does not need to avoid the UPC, the value of a UP validation can be assessed against the value of multiple classical validations. If a UP is good value, the request can be made within 1-month of grant. Otherwise, the patent can be classically validated with UPC having jurisdiction for infringement and revocation actions.
- Unitary Patent becomes an option on European patents granted on or after package comes into force.
- Apply strategic decision as to whether patent needs to avoid UPC jurisdiction.
- If UP is good value versus classical validation, request UP within 1-month of grant.
Impact of Transitional Period
Applicants will be able to opt for a UP as soon as the package enters force. It will therefore be an option for European patents pending or filed after the package enters force. The availability is determined by the date of grant.
The overriding decision during the transitional period will be whether the patent needs to avoid the UPC. If the patent needs to avoid the UPC, the patent will need to be classically validated and an opt-out filed on the European patent. We recommend filing the opt-out as part of the grant procedure. However, the patent will be able to opted-out at any point during the transitional period.
If the UPC is not a concern or is determined to be beneficial over national court jurisdiction, a value comparison can be made between the UP and classical validations. Applicants should consider cost and flexibility. If UP is good value, a UP request should be filed within 1-month of grant.
If the UPC jurisdiction is desired but the UP is not good value over classical validation, the patent can be classically validated within 3-months of grant. This is the current situation. Infringement and revocation proceedings can be brought in the UPC unless the patent is opted-out during the transitional period.