1Simultaneous protection possible between a Unitary Patent and a national patent
Yes
2Simultaneous protection possible between a classic European patent and a national Patent
Yes, if EP is not opted-out
No, if EP is opted-out
3Description
How the provisions apply:
Simultaneous protection by a Unitary Patent and by a national patent or by a European patent for which no opt-out has been declared and by a national patent
If no opt-out from the UPC's exclusive competence has been exercised for the European patent, the French patent will continue to have effect.
It is permissible for a French patent to relate to an invention for which a European patent with unitary effect has been granted to the same inventor or to their successor in title with the same filing or priority date.
However, special rules apply where a national patent co-exists with a Unitary Patent or a European patent for which the UPC is competent and the two patents (or applications) have the same filing or priority date, relate to the same invention and are owned by the same inventor (or successor in title):
It is not possible to validly transfer, pledge, mortgage or license the common parts of the patents (or applications) separately from one another (Articles L. 614-14 and L. 614-16-4).
If an action for infringement of a French patent is brought before a French court and, at the same time, the UPC is hearing a claim based on a Unitary Patent or a European patent falling within its exclusive competence in a dispute about the same facts between the same parties, the French court must stay the proceedings before it until the UPC's decision has become final (Article R. 615- 2).
An infringement action brought before a French court is inadmissible if the UPC has already taken a final decision on the same claim in a dispute about the same facts between the same parties (Article R. 615-2).
No simultaneous protection by a European patent for which an opt-out has been declared and by a national patent
Where a French patent relates to an invention for which a European patent has been granted to the same inventor or to their successor in title with the same date of filing or priority and an opt-out from the UPC's exclusive competence has been exercised under Article 83(3) UPCA for the European patent, the French patent will cease to have effect:
on the date on which the period for filing opposition against the European patent expires, if no opposition has been filed by then,
on the date on which opposition proceedings are closed if the European patent is maintained, or
on the date on which the opt-out is entered in the register under Article 83(3) UPCA if that date is later than the dates mentioned in the first and second indents.
