Preparing for change

What is the Unified Patent Court?

The UPC is a new common patents court with exclusive jurisdiction in respect of litigation (validity and infringement) for all EP(UPs) and non-exclusive jurisdiction over EPs validated in R-MS.

Currently, when granted by the European Patent Office, a European patent (EP) becomes a bundle of national rights that are validated and maintained in countries of commercial importance to your business.

When the UPC goes live, it will have jurisdiction over all existing European patents (and related SPCs) in the R-MS. The UPC will be competent to hear:

  • Infringement & related defences and licences
  • Declarations of non-infringement
  • Protective Measures / Injunctions
  • Damages
  • Revocation and counterclaims for revocation
  • Compensation for licence of right

This means that the UPC can grant powerful pan-UPC injunctions, but equally can revoke the patents centrally across the R-MS and grant pan-UPC declarations of non-infringement. The UPC Rules envisage a judgment on the merits being provided within 1 year of a claim being issued.

This is a significant change to the current system, where enforcement and revocation of each of the national designations of the EP are litigated separately in the national patent courts.

The UPC is a supranational court (see below) made up of a network of local, regional and central patents divisions that will be located across the R-MS territories. The Court will have a new set of rules and procedures that take features and tools of the existing EPC national patents courts. Most courts have indicated that English will be one of the possible languages and central division will use the language of the patent.

The UPC Central Divisions (currently Paris and Munich) will deal with revocation and declarations of non-infringement proceedings. Local/regional courts will deal with infringement, including preliminary injunctions. Arbitration will also be available within the UPC. The Court of Appeal will be in Luxembourg and the courts will be able to make referrals to the Court of Justice of the European Union.

The procedure will be front-loaded and there will be emphasis on written rather than oral advocacy. Injunctions, seizures, disclosure, expert evidence and cross-examination can be ordered by the Court. Potential infringers can lodge protective letters. There will be short interim hearings leading up to 1-2 day trials and a decision within 6 weeks of a final hearing.

There will be costs shifting, with the loser paying the winning party’s costs but recovery of costs will be capped relative to the value of the claim.

All EPs, including EP(UPs), will remain subject to the same 9-month, post-grant opposition procedures. The existing EPO opposition rules continue to apply. Ongoing oppositions will have no effect on an opt-out from the UPC. It is expected that opposition proceedings will run in parallel with UPC proceedings but the UPC does have discretion to stay proceedings where a rapid decision is expected from the EPO.

The Unitary Patent

How will it come into force?

As the UPC is an entirely new court system, there is significant work involved in ensuring that it is ready to accept cases on day-one.

What is a UP?

The prosecution of European Patents will continue as before. At grant a European Patent (“EP”) will create a bundle of national rights but a new UP “designation” will become available.

Preparing for change

The Unified Patent Court (UPC) and a new “unitary patent” or “European patent with unitary effect” (UP) are likely to become a reality in the second half of 2022.

How do I opt-out of the UPC?

When the UPC comes into force, all existing and future European patents that are granted and validated in R-MS territories will become subject to the jurisdiction of the court.

Latest updates

Update on the UPC - expected timeline

The first meetings of the UPC Administrative, Budget and Advisory Committee took place at the end of February. Following these, the Advisory Committee have begun interviewing judges for the court …

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Event - 10th May 2022

HGF UPC events in Germany and Austria 2022

HGF is holding a webinar and an in-person event covering the UPC in Germany and Austria this Spring. The provisional phase of the Unified Patent Court (UPC) is now underway …

Event details

A Step Towards A Unitary SPC?

The European Commission has recently announced a new initiative aimed at creating a single procedure for granting Supplementary Protection Certificates (SPCs)  (https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13353-Medicinal-&-plant-protection-products-single-procedure-for-the-granting-of-SPCs_en). Currently, SPCs are applied for and granted at …

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Event - 17th February 2022

HGF webinar: Looking ahead to the UPC and Unitary Patents

HGF webinar Looking ahead to the UPC and Unitary Patents is now available to watch. The patent landscape in Europe is on the brink of the most significant change in …

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Looking ahead to the UPC and Unitary Patents

On 19 January 2022, the Unified Patent Court’s (UPC) provisional application phase began. In the words of the UPC Preparatory Committee, this represented “the birth of the Unified Patent Court …

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Provisional Phase of the UPC can now begin

With the deposit on 18 January 2022 by Austria of its instrument of ratification for the Protocol on Provisional Application Period (PAP- Protocol; see here), the UPC’s Provisional Phase can …

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UPC moves one step closer to 2022 launch

The Austrian parliament has completed the legislative procedure to ratify the Protocol on the provisional application of the Agreement on a Unified Patent Court (the “Protocol”; see here). When deposited, …

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UPC – Progress on German ratification

The German Bundestag has approved the ratification bill on the Unified Patent Court Agreement. The EPO has welcomed the news, explaining that “in Germany, the UPC bill will now be submitted …

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