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/ Gottfried Schüll

UNITARY PATENT - Simultaneous Protection in DE

National German law introduces simultaneous protection by a UP or a classic EP patent on the one hand and a national DE Patent on the other hand

On the occasion of the expected start of the UPC next year, German national law introduces the possibility of simultaneous protection by two patents valid in Germany. Thereby it will be possible to enforce and maintain in Germany a national DE patent next to (ie simultaneously with) a classic EP patent validated in Germany or a UP patent.

According to present German law, a national German patent becomes void as soon as an identical classic EP patent grants, or - if an opposition is filed- as soon as it survived opposition proceedings. This against the background that the DE validated part of a classic EP patent is - presently - subject to infringement and validity proceedings handled before the same courts responsible for a national DE patent.

This changes with the UPC coming into existence. The UPC is competent for infringement and validity proceedings related to a UP and a classic EP patent. To enable competition between the national German courts and the UPC, a UP and a classic EP patent can be litigated before the UPC - including the German local divisions of the UPC - and a DE patent can be litigated before the national German courts.

The proceedings before the UPC and the proceedings before the national German courts may follow each other but cannot take place at the same time. In case a classic EP patent has been opted-out, simultaneous protection by a DE patent is not possible.

Against this background simultaneous protection in Germany should be considered when defining filing strategies and opt-out strategies for the UPC era especially in cases where Germany is a preferred and decisive venue. Since a German national patent can still be selected within ongoing deadlines for many pending patent applications, such strategies are already relevant today.

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