The new system comprised by the Unitary Patent and the Unified Patent Court is intended to start on 1 June 2023.
Despite the fact that Portugal is one of the 17 Member States that participate from the date of entry into force of the new system, so far no measures were proposed or adopted for accompanying the implementation of the European patent with unitary effect in Portugal, namely the so-called “safety net” provisions.
Safety net
The request for unitary effect has several formal and substantive requirements. For example, it should be filed at EPO no later than 1 month after the mention of the grant is published, and it can only be filed for patents with the same set of claims for all the participating Member States. What happens if due to a mistake the unitary effect of a granted European patent is rejected by the EPO or revoked by the UPC? Can the right holder still obtain protection through the classic national validation?
Most likely the rejection or revocation of the unitary effect will occur at a time when deadlines for validating the European patent (3-month time limit) in the EPO member states have already expired. In order to address this problem, several participating countries have already enacted safety net mechanisms i.e., the legal possibility to validate a European patent where a request for unitary effect has been rejected either by the EPO or the UPC, or where the unitary effect has been revoked by the UPC.
Risks
The absence of safety net provisions in Portugal means that those who request the unitary effect for a granted European Patent may face a loss of rights in Portugal in case of the unitary effect is rejected or revoked, when the deadlines for validating a European patent in Portugal have already expired. There is nevertheless some expectation that the Portuguese authorities will come to some conclusion before the starting date.
Joana Vieira (jov@sgcr.pt)
For more information or any question: sgcr@sgcr.pt.
