With the Unitary Patent, since June 2023 patent proprietors have had a third option—alongside national patents and European patents—to protect their inventions across the EU. Unlike European patents, both patent infringement actions and revocation actions relating to the Unitary Patent are heard by a single central court: the Unified Patent Court (UPC).
- What distinguishes Unitary Patents from European patents?
- Different types of patent infringement under the Unitary Patent
- Patent infringement: proceedings before the Unified Patent Court (UPC)
- What companies can do to avoid infringing Unitary Patents
What distinguishes Unitary Patents from European patents?
The “European patent with unitary effect”, known as the Unitary Patent, entered into force on 1 June 2023 as part of the EU patent package, a new uniform European patent system. The Unitary Patent has uniform effect in a total of 18 EU Member States that have ratified the UPC Agreement. The aim of the unitary European patent system is to make proceedings faster, more efficient, and more centralized.
Filing a European patent as a prerequisite for the Unitary Patent
Like European patents, Unitary Patents are granted by the European Patent Office (EPO). The European patent is a prerequisite for the Unitary Patent: only once the EPO has granted a European patent can the patent proprietor file the “request for unitary effect”. Once the Unitary Patent is registered, it automatically takes effect in all participating Member States. Separate validation in individual countries is not required.
Jurisdiction in patent disputes
Since the establishment of the Unified Patent Court in June 2023, the Court has generally been the central forum for all disputes concerning Unitary Patents and, by default, also for classic European patents. However, proprietors of European patents may request an opt-out during a transitional period of seven years (starting in 2023), whereby their European patents remain within the jurisdiction of national courts. An opt-out may be advisable in certain cases, for example if a granted European patent has only been validated in one or two countries, so that enforcing patent disputes before the UPC would involve additional effort.
| European patents (with opt-out) | Unitary Patents |
| Patent disputes in multiple countries must be enforced in separate proceedings before the respective national courts. | Proceedings concerning infringement and the legal validity of patents (revocation actions) are decided centrally by the Unified Patent Court (UPC). |
| Proceedings can be time-consuming and therefore associated with higher costs. | UPC decisions automatically apply in all participating states. |
| Frequently divergent judgments in different countries. | Patent proprietors can enforce their rights more easily in cases of infringement. In revocation actions, patents can be invalidated simultaneously in all participating states. |
Different types of patent infringement under the Unitary Patent
As with national patents and European patents, there are also different forms of infringement of third-party rights under the Unitary Patent.
- Direct patent infringement
– Manufacturing a product protected by the Unitary Patent
– Selling or offering such a product in the Member States
– Importing products that use a technology protected by the Unitary Patent
– Using a process protected by the Unitary Patent - Indirect patent infringement
– Supplying components specifically intended for the use of patented products, with knowledge that this constitutes patent infringement
– Offering such components to companies in the Member States - Use of protected processes
– Unauthorized/unlicensed use of a process protected by the Unitary Patent
– Offering a product that has been unlawfully manufactured directly by a patented process
Patent infringement: proceedings before the Unified Patent Court (UPC)
All disputes relating to patent infringement and the validity of Unitary Patents are decided centrally by the UPC. However, differences between the Unitary Patent and European or German patents do not only concern jurisdiction, but also, in part, the type of proceedings and the remedies available.
| Proceedings before national courts (European patent with opt-out) | Proceedings before the UPC | |
| Jurisdiction | Infringement courts in Germany (e.g. Düsseldorf, Mannheim, Munich) | Unified Patent Court (various local and regional divisions across Europe) |
| Type of proceedings | Separation of infringement and revocation proceedings: validity is decided separately by the Federal Patent Court | Infringement and revocation actions are heard centrally before the UPC, but may be handled by different divisions |
| Language | Language of proceedings usually German | Language of proceedings depending on the division: English or the national language |
| Duration | Proceedings in Germany take on average 12–24 months, possibly shorter in urgent cases | The goal is a decision within 12 months |
| Remedies | Injunction Damages Recall and destruction of products -> only within the respective country | Injunction Damages Recall and destruction of products -> uniform effect for all UPC Member States |
| Appeals | Infringement: appeal to the Higher Regional Court (OLG) Validity: Federal Patent Court / Federal Court of Justice | UPC Court of Appeal in Luxembourg |
Both infringement and revocation actions are heard before the UPC
The German patent system follows the bifurcation principle, under which different courts decide on patent infringement and patent validity. This also applies to proceedings concerning European patents, provided that an opt-out pursuant to Art. 83 UPCA has been requested.
For Unitary Patents, the Unified Patent Court generally decides both infringement and revocation actions. Nevertheless, an infringement action and a parallel revocation action relating to the same patent may, in certain cases, be decided by different divisions of the UPC.
The competent local or regional division of the UPC decides, depending on the case, whether it will
- hear the infringement action and the counterclaim for revocation together.
- refer the counterclaim for revocation to the Central Division of the UPC for decision.
- refer the entire case, including both actions, to the Central Division. However, this requires the consent of the patent proprietor, who often refuses this option in favor of a faster decision by the local or regional division.
What companies can do to avoid infringing Unitary Patents
In a global, innovation-driven economy, the protection of intellectual property is a key success factor. Patents secure a competitive advantage for companies, but at the same time entail significant legal risks—particularly where third-party rights are inadvertently infringed. For internationally active companies in particular, it is therefore essential to engage with patent law in order to avoid costly patent disputes. Preventive measures that companies can take include:
- Freedom-to-operate analyses to clarify existing IP rights before developing or launching new products
- Monitoring existing and newly granted Unitary Patents in the company’s relevant technology fields
- Comprehensive product reviews, particularly for new technologies or when expanding into new markets
- Training and internal guidelines to build basic awareness of patent rights and patent risks
- Seeking early legal advice from specialized patent attorneys
RGTH: Expert advice on preventing patent infringement
Avoid the risk of patent infringement through early and comprehensive legal advice: the patent attorneys at RGTH advise you on all matters relating to patent filing and patent litigation, as well as on the prevention of patent infringement.
Whether chemistry, mechanical engineering, software or biotechnology: we support you with our expertise and represent your interests.
Disclaimer: The information provided above does not constitute legal advice. No guarantee is given as to its accuracy or completeness.