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Frequently asked questions
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The Unified Patent Court (UPC) is the new European court for patents created by the UPC Agreement (UPCA). The UPC will have exclusive jurisdiction in respect of European patents and unitary patents. Currently, court cases about the infringement and validity of European patents are heard by the national courts of the countries concerned. The UPC will centralize the judicial process at a single European court for all countries that have ratified the UPCA (the UPC countries). The decision of the UPC is binding in all UPC countries. The UPC also has jurisdiction over all existing and future European patents that are in force in one or more of the UPC countries, except for European patents that have specifically been opted-out of the UPC jurisdiction at the request of the patent proprietor(s). Such opted-out European patents will fall under the jurisdiction of the national courts. The UPC will share the competence with respect to European patents (without unitary effect) with the national courts during a transitional period of 7 years. Parties have choice of forum during this period, and patent holders have the possibility of removing their European patent from the jurisdiction of the UPC (see opting-out).
The European patent with unitary effect or, shortly, the unitary patent is an alternative to the existing process of validating a European patent in individual countries. It is therefore not a ‘new’ patent, but an option to extend the validity of a granted European patent across all UPC countries in a single stroke.
The unitary patent is a single (indivisible) legal title extending to all UPC countries. This means that the unitary patent cannot be transferred in part. This also means that the unitary patent can only be enforced in a centralized court (the UPC). The UPC will also be the only court where a holder of a unitary patent can start an infringement case. Within the opposition period (9 months from the grant of the European patent), third parties can request revocation of the unitary patent before the EPO. After the expiry of the opposition period, the UPC will also be the only court where revocation proceedings can be started against a unitary patent. A decision of the UPC will have effect for all UPC countries.
Countries that can participate in the UPC Agreement must be EU member states. On 19 February 2013, 24 EU member states signed the Agreement. The UPC-UP system will start 1 June 2023.
Several signatory states have not (yet) ratified the Agreement. These include Czechia, Ireland, Greece, Cyprus, Hungary, and Slovakia. These may still become UPC countries at a later stage.
Some EU member states (e.g. Spain, Poland) have not signed the UPC Agreement and are not participating.
Non-EU countries cannot participate, regardless of whether they are participating in the European Patent Convention (EPC) or not. These include the United Kingdom, Norway, Switzerland, and Turkey. Following Brexit, the UK is no longer an EU member state.
Since 1 January 2023, applicants can request a delay in issuing the decision to grant a European patent, so that the patent will be granted after the new system has come into force. By filing such a request, the unitary effect will be available for the European patent.
An early request for unitary effect may also be filed for European patent applications.
The sunrise period offers patentees a chance to opt-out of the UPC before competitors can initiate a central revocation action before the UPC with the associated risk that the European patent is revoked by a single decision in all UPC member states. Opt-out requests can be filed from 1 March 2023.
The European Commission considers patents a vital element of the Internal Market to achieve growth through innovation and increase the international competitiveness of European business. It considered that the efficiency, affordability and legal certainty of the patent system should be enhanced. Thereto, a pan-European patent protection and dispute settlement was to be created, based on two pillars: a European Union patent (the unitary patent) and a unified jurisdiction for patent disputes (the UPC).
The courts will apply national law. However, national laws can be amended in view of harmonization with the UPC Agreement. In Germany and France, new rules on double patenting will come into force, allowing double patent protection for a national patent for the same invention alongside a unitary patent or a traditional European patent as long as the latter is not opted-out. This does not appear to open important new avenues, but goes to show that systems will exist side by side, with strong emphasis on harmonization. In Belgium, the limitations on the rights of patentees such as the research exemption and breeders’ exemption are brought in line with the UPC, so as to avoid different judicial regimes between patents that are opted-out or opted-in.
Although it is clear that the UPC and national courts have markedly different procedural rules particularly relevant to the speed of the proceedings, and that their decisions have different territorial scopes, there is less certainty about the applicable law when opting out. Moreover, there are various views among experts on whether an opt-out from the UPC’s competence also means an opt-out from the entire UPCA law.
In most contracting member states, a branch of the UPC will be present in the form of at least one Local Division. Local divisions will be present in Vienna, Brussels, Copenhagen, Helsinki, Paris, Düsseldorf, Hamburg, Mannheim, Munich, Milan, Lisbon, Ljubljana, and The Hague.
A Regional Nordic-Baltic Division will be present in Stockholm. This Division will hear cases from Sweden, Estonia, Latvia and Lithuania while each country will also designate facilities for hearings in their own country.
Paris, Munich and possibly Milan will house the three Central Divisions. Before Brexit, London was the Central Division's third seat and would hear cases involving patents in the field of IPC class (A) Human necessities (pharmaceuticals) and (C) Chemistry. These cases will now likely be heard initially in Paris and Munich. In Munich, cases involving patents in the field of IPC class (F) mechanical engineering are heard. The Paris Central Division will hear cases in all other fields of technology. The above are all courts of First Instance. A Court of Appeal will be seated in Luxembourg.
For patent proprietors it will be easier to enforce a European patent, because this can be achieved in all UPC countries through a single court case. A UPC judgment will directly affect the patent in all UPC countries. Depending on your situation, this may be advantageous or detrimental compared to the current system wherein national courts decide on patent matters.
During a transitional period of 7 years, you may choose the (continued) applicability of the current national court system for your European patent(s). In that case, you must submit a so-called opt-out request with the UPC for those patents that are to be excluded from the court’s jurisdiction. In that case nothing will change and court cases will be handled only by the national courts.