Unified Patent Court FAQs
What is the Unified Patent Court?
The Unified Patent Court (UPC) is a new court system with exclusive jurisdiction over Unitary Patents and the national validations of granted European Patents in the participating countries. However, the exclusive jurisdiction over national validations will not start immediately. There will be an initial seven year transitional period from 1 June 2023 during which national validations can be litigated in either the national courts or the UPC, and during which the national validations of a granted European Patent can be opted out of the UPC’s jurisdiction entirely for the life of the patent.
Where does the UPC have jurisdiction?
Currently the UPC has jurisdiction in 17 participating countries. Additional EU countries may join later and therefore fall under the jurisdiction of the UPC. It is possible that the UPC may have some long arm jurisdiction over infringements in other EU countries not participating in the UPC, and even some non-EU countries.
Where is the UPC located?
The UPC agreement sets out that it will have a central division currently located in Paris, Munich and London and also local/regional divisions across the EU. Following the UK Government’s withdrawal of its UPC ratification, the central division is split between Paris and Munich. An additional section may be created in another country, possibly Italy or the Netherlands. At present, local divisions have been confirmed in Germany, Italy, France, the Netherlands, Belgium, Finland, Denmark, Austria, Portugal and Slovenia. A Nordic-Baltic regional division based in Stockholm has also been confirmed, covering Sweden, Lithuania, Estonia and Latvia.
Can I choose which division of the UPC to litigate in?
The division of the UPC where an infringement action can be brought depends on the type of action, the location of the defendant or infringement and/or the technology sector. An infringement action can be brought at the local/regional division in the country the defendant is based or in any country where infringement has taken place. If there is no local/regional division in the relevant country, the action can be brought at the central division. In many cases, different infringing acts may occur in different EU countries, which will in practice give a patentee a choice of which division of the UPC to bring the action in. The central division will hear all revocation actions and actions for declarations of non-infringement. The central division based in Munich will handle mechanical engineering and chemistry cases and the central division based in Paris will handle other cases including software and physics, medical inventions and pharmaceuticals.
Will infringement and validity actions be heard together?
If a revocation action is initiated before the central division, then the patentee can either counterclaim for infringement before the central division (in which case infringement and validity will be heard together) or before the relevant local division (in which case infringement and validity will be considered separately, unless the local division refers the counterclaim to the central division). If an infringement action is initiated before a local/regional division and invalidity is counterclaimed, the local/regional division has three options: 1) proceed with both infringement and validity; 2) proceed with the infringement action and refer the counterclaim for invalidity to the central division; or 3) refer both infringement and validity to the central division. It will only become clear whether local/regional divisions will refer any part of an action once the system is operating.
What language will proceedings be in?
The language of proceedings in a local/regional division will be one of the official languages of the local/regional division. All local/regional divisions have selected English as an official language. It may, though, be possible to switch to the language in which the patent was granted (either English, German or French). The language of proceedings in the central division will be the language in which the patent was granted. For the Court of Appeal, the language of proceedings will be the language of the first instance proceedings or, on agreement of the parties, the language in which the patent was granted.
Who will judge at the UPC?
The judges in the UPC are patent experts from the participating countries, including many of the patent judges in the national courts of the participating countries. A panel of three judges will generally preside over each first instance case and the panel will be composed of at least one judge from the country in which the action is brought. The panel will contain three legally qualified judges or two legally qualified judges and one technically qualified judge, depending on the type and location of the action. The technically qualified judges are drawn from a broad pool of subject experts, most of whom are highly experienced European patent attorneys. Five judges from different participating countries will preside over Appeals.
Do I need to use a local representative from the country of the relevant local, regional or central division in an action at the UPC?
No. Any suitably qualified UPC representative can represent parties in any of the divisions and at the Court of Appeal.