What are the options if you want to be able to use the UPC?

All unitary patents will fall within the competence of the Unified Patent Court (UPC). Additionally, classical validations of European Patents in states which have ratified the UPC agreement will fall within the competence of the UPC (unless opted-out).

Can I obtain a Unitary Patent now?

The European Patent Office (EPO) has announced procedural options which applicants can use to delay grant. For any case where a Rule 71(3) EPC communication (a notice of allowance) has been issued but the patent has not yet granted, it may be possible to request delay of grant until after the Unitary Patent system is live, to allow a Unitary Patent to be obtained.

Your usual EIP contact can advise on this if of interest.

What about other validated EP patents?

During the transitional period, national courts and the UPC share competence in respect of classical validations of European patents (that are not opted out) in the member states participating in the UPC.

If use of the UPC is important, there is merit in being the party to initiate litigation so that you choose the forum. If an action is brought in a national court, it may no longer be possible to use the UPC for an action involving the same parties in respect of that patent. This is expected to be a complex area of law due to different relevant regulations, and EIP Amar are able to advise on the appropriate strategy for your situation.

What if an EP patent has been opted-out?

It is possible to withdraw the opt-out, provided that no national litigation has taken place. This would then allow the use of the UPC in respect of that patent. An opt-out can only be done once, so if a patent is opted out and and then that opt-out is withdrawn, the patent cannot be opted out again.