The Unitary Patent System is on the way

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January 20, 2022
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We reported last year that the Unitary Patent and Unified Patent Court (UPC) were progressing. The main hurdle left to clear was sufficient countries ratifying the Protocol on the Provisional Application of the UPC Agreement to allow the provisional application to start. The Preparatory Committee has now announced that Austria has provided the necessary 13th ratification, and so the Protocol is now in force. This allows the institutions of the Court - the Administrative Committee, the Advisory Committee and the Budget Committee – to come into being, and implementing legislation, such as the Rules of Procedure and the regulations governing patent attorney representation at the Court, to be adopted. When preparations are sufficiently advanced, Germany will deposit its instrument of ratification of the UPC Agreement, and the Court will formally begin operations at the beginning of the fourth month after the date of that deposit.

There does remain a constitutional niggle to be addressed, namely whether the UK’s mandatory ratification of the Protocol can be replaced by that of Italy now that the UK has withdrawn from the Agreement, together with the related question of where the branch of the Central Division that the Agreement specifies should be in London, should now be located.

The European Patent Office has welcomed this development and has repeated the estimate that around 8 months will be needed before the Court can fully open for cases. In addition, the EPO has announced a pair of measures to allow early uptake of the system. Once Germany has deposited its instrument of ratification, applicants will be able to both request delay grant of their patents (after the Advance Notification of Grant under Rule 71(3) EPC has been issued), and to file requests for unitary effect during this period, which will take legal effect after grant of the patent and once the UPC Agreement has come into force.

Recent Case Reports

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UPC Court of appeal issues final decision, despite no finding on infringement at first instance
30 March 2026
In Rematec v Europe Forestry, the UPC Court of Appeal overturned the Mannheim Local Division’s revocation of the patent and, applying Article 75(1) UPCA, issued a final decision on both validity and infringement despite no infringement finding at first instance. The Court adopted a narrower, description‑led approach to claim interpretation, confirmed the patent’s validity, found infringement, and granted final remedies without referring the case back to the Court of First Instance.
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Litigation insurance as security for costs
30 March 2026
In Syntorr v Arthrex, the UPC Court of Appeal clarified that while litigation insurance is not itself a form of security under Rule 158 RoP, it is a relevant factor when deciding whether security for costs should be ordered at all. By failing to consider the claimant’s insurance policy, the Munich Local Division wrongly exercised its discretion. The Court set aside the €2 million security order and confirmed that insurance can mitigate concerns about cost recoverability.
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National law applies to claims for loss of profit if the events occurred before the UPC came into force
30 March 2026
In Fives v REEL, the Hamburg Local Division of the UPC dismissed a standalone damages action despite prior findings of infringement. Although the UPC was competent to assess damages, the court held that national law applied because the relevant events pre‑dated the UPC’s entry into force. Applying German law, the court found that the claimant had not proven causation or lost profit, highlighting the demanding evidentiary burden for price‑reduction damages claims and the importance of substantiating counterfactual tender outcomes.
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