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The Unified Patent Court (UPC) enables a patentee to bring a single action in respect of all participating EU member states and potentially also obtain a pan-European injunction. This compares favourably with the traditional system, under which a patent proprietor must enforce a European patent separately in the national courts of individual countries throughout Europe. As well as encountering differing court procedures in the various countries, a patentee may also be faced with different infringement and/or validity outcomes in the different countries, even in relation to the same European patent. There can be significant uncertainty and inconsistency, especially in countries that do not have specialist patent judges, and this should eventually be reduced under the operation of the UPC. However, it will also be possible to invalidate a patent throughout all of the participating EU member states in a single revocation action at the UPC.
The UPC has jurisdiction over traditional European Patents obtained via the European Patent Office, as well as Unitary Patents. However, during a transitional period of 7 years from its start date of 1 June 2023, patent owners have the opportunity to ‘opt-out’ their traditional European patents from the jurisdiction of the UPC, in which case they will remain under the jurisdiction of the respective national courts in each country, as was previously the case. Any Unitary Patents will automatically fall under the jurisdiction of the UPC, and cannot be opted out. During the life of an ‘opted-out’ patent, the patentee will also be able to opt the patent back in if they choose to. There is a provision in the legislation for the 7 year transitional period, during which ‘opting out’ is possible, to be extended.
Patent proprietors need to decide whether to allow their European patents to fall under the jurisdiction of the new and initially untested UPC, or whether to opt out and continue to have infringement and validity matters heard in the established national courts.
The UPC is be made up of Central, Local and Regional Divisions. The Central Division will hear applications for revocation and declarations of non-infringement, and cases will be divided between three different locations depending on technology area. Broadly speaking, cases relating to the fields of chemistry, pharmaceuticals and biotechnology be heard in Milan; mechanical engineering cases will be heard in Munich; and the Paris branch will deal with other technologies including electrical and computing technologies.
Participating member states are able to either set up a Local Division, or join with one or more other countries to form a Regional Division. Infringement actions will generally be heard at the Local or Regional Division where an infringement occurs, or where the defendant is based, and will usually also hear counterclaims for revocation in infringement actions, although these may be referred to the Central Division in some cases.
Certain countries may form more than one Local Division, depending on the expected volume of cases. Germany, for example, has four Local Divisions (in Düsseldorf, Hamburg, Munich and Mannheim). Many Regional Divisions have not yet been finalised, although a Nordic-Baltic Regional Division consisting of Estonia, Latvia, Lithuania and Sweden has been created.
A Court of Appeal is based in Luxembourg.
Where a Unitary Patent is revoked by the UPC, the patent will cease to have effect throughout the countries participating in the Unitary Patent system. However, it is also important to note that a European patent revoked by the UPC will also be automatically revoked in any other European countries which are participating states of the UPC Agreement. This effect can only be avoided during the 7 year transitional period by opting out a European patent from the jurisdiction of the UPC, in which case revocation of the European patent will continue to be handled independently by the national courts.
The Unified Patent Court provides centralised enforcement and revocation of both Unitary Patents and traditional European patents for a large number of EU countries, and is expected to become a cost-effective option. Patent proprietors who are cautious about entrusting their patents to the new court system have the opportunity to opt out their European patents during the early stages, without the need to pay an official fee.
