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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).
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.
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).
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.
The UPC will work with short deadlines, and all evidence must be submitted at the earliest possible opportunity (front-loaded system). Therefore, business strategies will require thorough freedom-to-operate analyses in view of the UPC.
Clearly, the UPC and national courts have markedly different procedural rules particularly relevant to the speed of the proceedings, and their decisions have different territorial scopes.
Depending on the legal question, the Courts of First Instance and the Court of Appeal of the UPC will apply
- European Union law (the “Unitary Patent Regulation” Regulation (EU) No. 1257/2012, and the "Translation Regulation" Regulation (EU) No. 1260/2012);
- the Agreement on the Unified Patent Court (UPCA);
- the European Patent Convention (EPC);
- other international agreements applicable to patents and binding on all the Contracting Member States (e.g. TRIPs).
National law will only play a minor role in UPC proceedings.
In infringement cases relating to European or unitary patents, the UPC will apply the articles regarding direct infringement (article 25), indirect infringement (article 26), limitations of the effect of a patent (article 27), and exhaustion of rights (article 29) of the UPCA. It is expected that role of the Court of Appeal will be important to clearly define infringement tests for equivalence or indirect infringement to ensure harmonization between UPC member states.