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WHICH STATES ARE IN THE UPC & WHERE WILL A UP HAVE EFFECT?

01 June 2023 | Europe
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See our summary of who's currently in and who's out of the UP/UPC system below.

  • IN: UPC participating Member States that have ratified the UPCA in respect of the non-opted out EPs of which the UPC will have jurisdiction and UPs will have effect (17):  Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Slovenia, Sweden.
  • SIGNED: UPC participating EU Member States that have signed but not yet ratified the UPCA - the UPC will have no jurisdiction over each of them until each fully ratifies, and UPs granted prior to each's ratification will not have effect there (7): Cyprus, Czech Republic, Greece, Hungary, Ireland, Romania, Slovakia.
  • OUT: EU Member States which are not participating in the UPC (3) – Spain, Poland, Croatia.
  • OUT: Non-EU EPC states (not part of the UPC/UP system): Albania, Iceland, Macedonia, Norway, Turkey, Switzerland, Serbia, and the UK.

See the table produced by the Council of Europe which shows which have signed and which states have then ratified (with dates) the UPCA. See also the diagrams on the UPC website home page

The vast majority of  EU Member States participated in the enhanced cooperation procedure to establish the unitary patent via Regulation 1257/2012 of 17 December 2012 (the UP Regulation), including the UK which was then a member of the EU, but has now withdrawn). However unless these EU member states have also ratified the Unified Patent Court Agreement (UPCA), the unitary patent (UP) will not be effective in their jurisdictions as the UPC is the only enforcement mechanism available for the UP. Poland participated in the UP Regulation but has not signed the UPCA and so the UP will not have effect there; nor will it apply to Croatia or Spain which have not signed the UPCA or participated in the UP.  Since the UK is not in the UPC system (nor in the EU), UPs will not have effect in the UK either.

A UP granted on the first day the UPC only applies to the 17 states that have fully ratified the UPCA (see above) and taken part in the UP Regulation.

EU Member States where the UP does not apply (given the current state of UP participation and UPCA ratification):

  • Spain – has declined involvement in UP or UPC and has challenged the use of the enhanced cooperation procedure to establish the UP and the language regime at the Court of Justice of the European Union which rejected both attempts.
  • Poland – participated in enhanced cooperation establishing the UP but has said it will not sign the UPC (for now), thus a UP will not be enforceable in Poland since enforcement can only occur via the UPC.
  • Croatia – has not agreed to the UP enhanced procedure or signed the UPC Agreement.
  • The states which have signed the UPCA but have not yet ratified: Cyprus, Czech Republic, Greece, Hungary, Ireland, Romania, Slovakia. Hungary and the Czech Republic have both expressed doubts over fully ratifying the UPC Agreement and Ireland has confirmed that it will require a national referendum before it can fully ratify and that this may take place in 2023 or 2024. 
  • EPC member states which are not eligible to be signatories of the UPC Agreement, although they are European Patent Convention signatories and are options for designation under the EP  NorwayTurkey and Switzerland. Whilst it was originally a party to the UPCA and took part in the Unitary Patent enhanced procedure, the UK has withdrawn from the UPC system (and the EU) and UPs will not cover the UK.

NB A UP will only ever have effect in the EU Member States that have both ratified the UPCA and taken part in the UP Regulation at the time that particular patent's unitary status is registered.

  • See also on this hubHow to get a Unitary Patent
  • For more on the UPC and unitary patent see our series of feature articles published in PLC Magazine's March and April editions 2022 and shared in pdf form on our IP blog here.

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