LS&HC Horizons 2022 - Flipbook - Page 48
Hogan Lovells | 2022 Life Sciences and Health Care Horizons
48
What opportunities and risks does the unitary patent offer?
The new unitary patent system offers you an additional opportunity
to protect and enforce your intellectual property. Whether you opt for
the new form of protection or continue to choose “classic” European
patents or national patents is a question of your patent strategy. Of
course, you can pursue different strategies depending on the patent or
patent family.
There are many arguments in favor of the unitary patent. If patent
protection is sought in several participating member states, a
significant advantage over the “classical” EP bundle patent will
likely be the lower costs (depending on the scope of protection). The
cost advantage over the bundle patent becomes greater the higher
the number of countries in which it would have been validated. In
addition, translation requirements will be largely eliminated.
Assignments of rights or licenses do not have to be registered
individually for each country in the national patent registers, but are
instead handled centrally by the EPO.
Concerning litigation, the main advantage of the new unitary patent is
its cross-border enforceability. Cross-border patent infringements can
be litigated more easily and quickly.
Conversely, however, this means that a unitary patent can be brought
down by a single invalidity procedure for the territory of all participating
member states. Therefore, there is also an increased risk for the patent
proprietor compared to the previous system, in which the national parts
of the batch patent are treated independently of each other.
Finally, it must be taken into account that this is a new jurisdiction for
which no case law has yet been established. Consequently, decisions
can be predicted less reliably. Also, decisions - at least at the beginning
- may still be influenced by the national background of the respective
judges before a more uniform approach emerges. This may apply in
particular to the extent to which the approach of separate decisions
on validity and infringement (bifurcation”), which is particularly
common in Germany and known as “patent owner-friendly”, will
be applied before the UPC. Therefore, finding the right balance of
unitary patents, “classical” European patents and national patents in
your patent portfolio will be key for a successful patent enforcement
strategy in Europe.
Miriam Gundt
Partner, Dusseldorf
Christian Stoll
Partner, Hamburg
Andreas von Falck
Partner, Dusseldorf
