Tuesday, April 4 2023   \  Published by Veneer Shipley .

Revocation Actions at the Unified Patent Court

Revocation Actions at the Unified Patent Court

The advent of the UPC offers those with an interest in the European intellectual property landscape an additional option to explore the validity of patents granted by the European Patent Office (EPO).

Any patent granted by the EPO, whether a Unitary Patent or not, can, subject to the opt-out provisions, be attacked centrally in a UPC revocation action. This means that if a claimant is able to persuade the Court that the patent lacks validity, it will be revoked across the 17 countries participating in the UPC in one fell swoop. A decision of this weight is likely to be of significant influence even in those countries that are outside the UPC for now.

This is not entirely new to European procedure – the ability for third parties to revoke a European patent across all states has up until now been provided by Opposition procedure at the EPO. However, Opposition is significantly time-limited – any Opposition must be filed within nine months of grant. After that window, patents could be revoked in the national courts, but the limited effect of an individual national decision, together with significant variation in costs, timeline, and procedure, means that this option is of limited utility.

Any person “concerned by a patent” may bring a revocation action at the UPC. While not as liberal as EPO Opposition procedure – which allows parties to bring actions anonymously, naming a “straw man” rather than identifying themselves – there is no requirement to demonstrate an active conflict in order to have standing. Read more

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