The Unitary Patent Landscape: UPC Opt-out Analysis and Unitary Patent Trends

The launch of the Unified Patent Court (UPC) system on June 1, 2023, provided patent owners and applicants with access to a completely new European patent right and Europe-wide court system, but what has been the uptake? Business Intelligence Senior Consultant Steven Nindorera-Badara shares insights from Questel’s patent landscape analysis of the latest unitary patent trends.

When the Unified Patent Court Agreement (UPCA) came into force on June 1, 2023, it marked the start of the jurisdiction of the new Unified Patent Court (UPC) for European patent cases (in UPCA member states), except for European patent titles that are opted out of the new court system (“UPC opt-outs"). As importantly, it provided patent applicants with the ability to file European patent rights with unitary effect (“Unitary Patents”), in the 17 EU member states that have ratified the agreement.  

Back in July, we shared an initial analysis of UPC opt-out trends, examining the number of opt-outs by assignees in relation to their technological fields, legal status, or country of origin. Here, we provide an update of this analysis, as well as the results of our recent patent landscape analysis of unitary patent filings to date. Read on to discover the latest unitary patent trends, including the relative level of unitary effect in different technological domains and how the main European patent owners are managing their newly created unitary patents.

An Update on UPC Opt-out Numbers

Key findings from our UPC opt-out analysis:

• 538,665 published patents or applications have been opted out, representing 34.2% of live EP titles

There has been no decrease or increase in the percentage of procedures initiated since the first figures presented in our July webinar ‘5 Things You Need to Know about Opt-outs and the Dawn of the Unified Patent Court.’

• 412 opt-outs have been withdrawn (0.1% of initiated Opt-outs)

Opting out is a reversible procedure, as it can be withdrawn at any time during processing or after registration.

European patent holders who have withdrawn their option to opt-out have generally done so on a selection of patents, and not on all their opted-out patents.

While no strategic pattern can be observed at a macroscopic level, it is interesting to note that Panasonic, for example, withdrew its opt-out applications for four of its patents before bringing an infringement action before the UPC. The monitoring of such withdrawn patents could be a promising way to identify infringement actions to come.

Note: Opt-out withdrawal information is available on Orbit Intelligence using the Advanced Search tools or Command line (CO/ACT=EP/UPW OR CO/ACT=EP/UPWC).

• Around 65% of live European patents are potentially under the jurisdiction of the UPC  

It includes non-Opt-Out Patents and Unitary Patents. The newly created unitary patent enables holders of granted European patents who have applied for unitary effect to obtain a single patent conferring uniform protection in the 17 member countries of the UPC.

Unitary Patent Trends: Granted patents since the UPCA entered into force  

To perform a comparative analysis of trust and interest in the UP/UPC, we assessed granted European patent data since UP/UPC came into force on June 1, 2023.

• 7,719 of these are Unitary Patents, representing 16% of patents granted since the UP/UPC came into force (Figure 1)

In the same period, 38% of the patents were opted out of the jurisdiction of the UPC.

We have analyzed the status of those granted patents according to technological domains using the technology overview available in the Patent Analysis tools provided by Orbit Intelligence (Figure 2).

• No general correlation is observed between the levels of opt-out and Unitary Patent filings according to the technological domain. Trust in the UPC system is not always correlated to a willingness to obtain unitary patents, and vice versa

By combining opt-out and requests for unitary effect, a strategic choice has been made for 50 to 75% of European patents for most technologies (Figure 2).

Telecommunications and digital communications are the only field in which no active choice (opt-out or unitary patent) has been made in more than half the portfolio of European patents granted since the UCPA came into force.

Patents in the fields of fine organic chemistry, biotechnology and pharmaceuticals were subject to higher opt-out rates (50%), with telecommunications-related inventions showing the least opt-outs (less than 35%) (Figure 2).

No technological field has seen more than 30% of unitary patents since the UCPA came into force.

• A wide range of opt-out and unitary effect strategies can be observed among the main assignees of patents granted since the UCPA came into force

This slide contains the following visuals: Action concerning UP/UPC competence by holders of EP patents granted since June 2023. Please refer to the notes on this slide for details

U.S. companies seem to be evading the jurisdiction of the UPC at a higher level, from 68% of their newly granted patents to 100% for Microsoft Technologies (Figure 3).

Top assignees seem to have requested a lower level of unitary effect, since only academic players (CNRS & Fraunhofer Institute) and Siemens have more than 20% of unitary patents within their newly granted EP patents.

Unitary Patent Landscape Analysis: Key Takeaways

• The launch of UPC did not affect the relative number of opt-out requests, which remained in the same range as disclosed in July (34.2% vs. 35%).
• 16.25% of granted European patents are Unitary Patents.
• Non-European applicants seem to be the most cautious about the new jurisdiction, probably waiting for the first decisions at the UPC. They filed fewer unitary patent applications than applicants from UCPA member countries. If we consider the country of first priority, only patents first filed in the USA, China, South Korea, India, and Japan were the subject of less than 10% of unitary effect request (data not shown), and some of their major patent holders chose to opt-out more than 90% of their newly granted patents.
• There is no general correlation between the levels of unitary patents and opt-outs in most technological fields, even though a wide range of strategies can be observed across technologies.

To find out more about our Unitary Patent analysis or for dedicated information or support for your Unitary Patent and UPC opt-out strategy, contact our subject matter experts.

About the author
Steven Nindorera-Badara is a Business Intelligence Senior Consultant at Questel