UPC Blog Series: Part 2 - Is “Wait and See” the Best UPC Strategy?

The single most remarkable reform in the European patent landscape is soon here, as the Unified Patent Court (UPC) and the Unitary Patent (UP) system will come into force on 1 June 2023.

To make the best out of the ongoing sunrise period which started on 1 March 2023, our experts from different jurisdictions will under this blog series share their insights on topics that may have received lesser attention in the ongoing lively UPC/UP discussion.

The second part of our UPC blog series is about different UPC strategies, and especially if you should opt-out your traditional European Patents (EP) from the UPC’s jurisdiction.

The big question of opting-out

Given the perceived general uncertainty related to the UPC and the risks of an UPC-wide revocation action, it has for long been predicted that the majority of the EPs will be opted-out. However, the industry’s view of the UPC has changed in the past year.

The Rules of Procedure now form a solid basis for litigation for patent owners. A very important step was the appointment of legally qualified judges. It is now clear that the best patent judges from the national courts of the participating member states have been appointed. Their views are known from the case law of their national courts.

The UPC is determined to issue judgments on the merits within little more than a year. It covers countries where national courts are less experienced in complex patent litigation. Indeed, there is the risk of a central revocation action, but that has to be balanced against the advantage of an infringement action that covers a market of over 300 million consumers and probably more in the coming years.

In the first three weeks of the Sunrise Period only just over 2000 opt-outs have been registered. In Germany 917.053…

Full article available on PatentHub

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