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Why litigate at the Unified Patent Court?

The primary advantage of the Unified Patent Court, for patentees, is that it operates as a single court with jurisdiction over multiple European countries. Currently 17 countries have ratified the Unified Patent Court Agreement and eventually it is hoped that 25 countries in total will ratify the agreement. An infringement action brought at the UPC could, under these circumstances, cover all EU countries except Spain and Croatia.

The wide jurisdiction of the UPC means that a European Patent can be enforced in multiple countries via a single infringement action brought at the UPC. This is considerably less expensive than bringing separate infringement actions before the national courts of each country where there is infringing activity. It also avoids the undesirable outcome of national courts in different European countries coming to different conclusions.

As regards the UPC court procedure, the UPC is designed specifically for patent litigation. The procedural rules of the UPC enable a number of advantages for a patentee seeking to enforce a patent.

  • Patents granted in English are likely to be litigated in English. This reduces translation costs, and enables English-speaking litigants to understand and participate fully in the litigation.
  • The UPC has the power to order an alleged infringer to disclose to the patentee relevant material under their control, e.g. by providing details of the product or process said to infringe the patent. The UPC can also enable a patentee to secure evidence of infringement via a saise-contrefaçon procedure, whereby court officials can gain access without notice to the business premises of an alleged infringer.
  • The Rules of Procedure for the UPC envisage that the first instance decision should be achieved within a timescale of 12 to 15 months, with a similar amount of time for the appeal. This compares favourably to current national court timescales. The court should therefore provide an effective remedy within a realistic timeframe.
  • The UPC has the power to award costs against a losing party. Thus, if a patentee successfully establishes infringement of a valid patent before the UPC, they can recover a proportion of their legal costs from the losing party.

Decisions from the UPC are likely to be of high quality. This is because first instance UPC cases will be heard by a panel of three experienced and specialist intellectual property judges. The plan is that at least one of the first instance UPC judges will be an IP specialist judge from the existing national courts. This ought to ensure high quality decisions from the outset. There will be a Court of Appeal which will sit as a panel of five experienced appeal judges.