The Unified European Patent Court (UPC) is a new international court established by the contracting EU member states. It creates an effective forum through the Unitary Patent System to enable the enforcement and challenge of patents in Europe. The court eliminates the need for litigation in different countries and increases legal certainty through harmonized jurisdiction. It will have a significant impact on the patent strategies and activities of all companies operating or intending to operate in Europe.
When the unitary patent system was first introduced, only 17 countries that had ratified the UPCA (Agreement on a Unified Patent Court) were included in the scope of protection of the unitary patent. It is expected that more countries will ratify the UPCA and join the scope of the Unitary Patent System, which will lead to an expansion of the scope of protection. This expansion offers Chinese companies the advantage of increasing the scope of protection of their unitary patent and simplifying the filing process compared to individual national applications. Filing a patent application in multiple EU member states requires the payment of translation and filing fees in each country. Once the UPC enters into full force in a Member State, it will be significantly less costly for patent applicants to file their patents with the UPC rather than filing separate applications – and it will save time.
However, Chinese companies may also encounter increased risks when filing or referring to the unitary patent and the UPC. If a court invalidates a patent, especially one that is important to a Chinese company, the result will be that the patent will be invalidated in several EU member states, which may mean significant losses. Furthermore, subsequent accessions of new member states have no retroactive effect on the territorial scope of protection of unitary patents already applied for. This means that the scope of protection of a unitary patent remains unchanged throughout its life cycle. Therefore, the implementation of the unitary patent system may result in unitary patents filed at different times having different territorial scopes of protection. Chinese companies wishing to apply for a unitary patent will therefore keep an eye on the UPC in order to respond to any changes. In addition, the amount of the renewal fee for a unitary patent is based on the Ture Top 4 model: the renewal fee is equal to the sum of the renewal fees of the four most frequently filed countries in the member states. If fewer than four target countries are to be filed, the annual fee for a patent filed through the unitary patent may be higher than the total annual fee for separate applications filed in the traditional manner. In such cases, the annual fee cost for a unitary patent is not advantageous.
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China Intellectual Property Blog 