James Nurton

The most significant development in IP in Europe in 2023—indeed arguably the most significant in nearly 30 years—was the launch of the Unitary Patent and Unified Patent Court on June 1. The full implications of this are explored here. Beyond the UP and UPC, however, there were a number of. important developments in Europe affecting all the main IP rights.

A UK judge in May determined in a non-public judgment that has been widely reported on that Apple should pay Optis a total of $56.43 million plus interest for a worldwide FRAND license to Optis’s portfolio of 4G standard essential patents (SEPs). In the most recent development in the overall case, Apple yesterday reportedly lost its appeal in one of the four technical trials pending between the parties, meaning it could still be liable for fees related to infringement in the range of $7 billion.  

Three judges of the new Unified Patent Court took part in a panel discussion about the new system at the Fordham IP Conference on April 13. Introducing the panel, Myles Jelf of Bristows LLP in London emphasized that the UPC is a completely new Court, which will have a huge impact on patents globally. He stressed that it is an amalgam of existing procedures: “In the UPC those procedures will surely come to have their own character and usage. As we stand here today, we have no precedents, case law or customs as to what those procedures will be.”

Expect further developments in the passage of the designs package next year, as the details are debated in the European Parliament. Despite the extensive consultation already carried out, it is possible that changes will be made to the proposals before a final version is agreed. And the UK Supreme Court will hear the SkyKick case concerning bad faith. A judgment can be expected before the end of the year.

The long-awaited introduction of the Unitary Patent and UPC should provide much interest in 2023, with attention likely to focus on the early numbers of applications for unitary effect, as well as the number of European patents opted out and the volume and nature of cases brought before the Court. At the EPO, decisions are expected from the Enlarged Board of Appeal in Case G 2/21, which concerns plausibility and post-published evidence, and Cases G 1/22 and G 2/22, concerning entitlement to priority. Oral proceedings in G 2/21 were held on 24 November. And the UK Supreme Court should hear the DABUS case and deliver its judgment in 2023.