A guide to the UPC and the UP - Flipbook - Page 55
otherwise of the registration of such interests on a third party. In the absence of any such
guidance it is necessary to consider the applicable law that will determine the effect of
registration of an interest against a Unitary patent. The registration of an interest is a fetter on
the Unitary patent as a property right. Therefore, it seems logical to conclude that the
applicable law in this situation is the national law applicable to the relevant Unitary patent when
treated as a property right. 84 Thus, the effect of registration or non-registration of an interest
according to the relevant national law will apply.
3-76
Whilst this solution will mean that the effects of registration or non-registration of an interest
against a Unitary patent will differ from patent to patent, which is not entirely satisfactory,
it will at least mean that there is certainty as to what the effect of registration will be at least
in relation to each patent. So, for example, a third party who has entered into a licence under
a Unitary patent without notice of an earlier unregistered exclusive licence under the same
Unitary patent, will have to look at the national law applicable to the Unitary patent as a
property right in order to determine if the later licence can take priority over or co-exist with
any earlier licence, or instead whether the remedy simply lies in breach of contract against
the patentee.
3-77
From a practical standpoint, registering an interest against a Unitary patent in the register for
Unitary patent protection is advised, particularly for security interests. Depending upon national
law, such registration may be considered as notice to all third parties (whether or not they had
actual knowledge of the interest) which may in turn simplify or prevent legal uncertainty when
deciding who has the first right to a security in a hierarchy of security interests.
84
See paragraphs 3-02 to 3-17.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 45
