On 19 February 2013, 24 EU member states signed the treaty for the creation of a “Unified Patent Court”.

This court will be competent to decide in the matter of the currently existing European patents as well as future Unitary patents. Among other things, it will be competent to hear both invalidity and infringement cases, on the merits as well as in the context of proceedings for preliminary measures.

For the time being, only 3 member states have not signed the treaty, although they can do so in the future. However, the fact that such 3 member states did not sign the treaty does not represent an obstacle to the progression of the treaty toward entry into force.

The conditions for the treaty to enter into force are twofold. The first is that at least 13 signatory states, including Germany, Great Britain and France, must ratify the treaty at the national level. The second is that the very recently passed new European Regulation of 12 December 2012 on jurisdiction and on the recognition and enforcement of judgments in civil and commercial matters must be amended so as to also consider the (future) existence of the Unified Patent Court. In any case, according to the treaty the Unified Patent Court cannot come into existence before 1 January 2014.

Once the Unified Patent Court has come into existence, it will be possible to file a single invalidity or infringement action the outcome of which will cover several EU countries at once (rather than having to file individual invalidity or infringement actions in the various EU countries of interest). It will also be possible for the patent owners to file a single request for preliminary measures, which will also be applicable in several EU countries at once. At the same time, it will also remain possible, with a view to obtaining the revocation of a European or Unitary patent, to file an opposition with the European Patent Office. In fact, it will be possible to file, for the same patent, both a revocation action with the Unified Patent Court and an opposition with the European Patent Office: this dual attack may be of interest to potential infringers for especially important cases.

Thus, this new step toward the entry into force of the Unified Patent Court, and with it of the Unitary patent, opens up new opportunities for both patent owners and potential infringers to defend their respective positions, by choosing from an increased number of centralized procedures.

It will of course be important to carefully consider, for each situation that will arise once the Unified Patent Court will start operating, which strategy and which type of procedure will best fit the needs of the parties, but surely the advent of the Unified Patent Court will represent a new opportunity for companies with commercial interests in the European Union to defend their rights and thus maintain or improve their competitive advantage and market position.

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