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

Start of the UPC Sunrise Period delayed to 1 March 2023

The UPC sunrise period which was expected to start on 1 January 2023 has now been postponed to 1 March 2023. Consequently, the entry into force of the UPCA and …

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Gender diversity at the UPC

In Europe, women remain grossly under-represented in research and innovation. A recent study by the European Patent Office (EPO) found that only 13.2% of inventors in Europe are women. The …

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Comparing the value of European vs Unitary Patent Validation

The EPO’s European patent system is on the brink of the biggest change in a generation – from 2023 it is expected that a new unitary patent (UP) will become …

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EPO sets start of Unitary Patent transitional measures as 1 January 2023

The EPO has announced that it intends to adjust the start date of its transitional measures for Unitary Patents (UP) to 1 January 2023. From that date, applicants who have …

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Event - 10th November 2022

Webinar: basics and news about Unified Patent Court

HGF is hosting a webinar on 10th November to discuss ‘Basics and news about Unified Patent Court’. Date 10th November, 2022 Time 14:00 – approx. 15:30 (CET) About the webinar …

Event details

UPC likely to be open on 1 April 2023

On 6 October the UPC preparatory team released its roadmap regarding the opening of the UPC. German ratification of the UPC agreement is likely to be on 19-23 December 2022, …

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Event - 25th October 2022

Webinar: Litigating in the Unified Patent Court

HGF hosted a webinar on 25th October to discuss ‘Litigating in the Unified Patent Court’. Date 25th October, 2022 Time Session 1 – 7:00 (BST) / 8:00 (CEST) / 15:00 …

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A new patent system dawns over Europe and presents opportunities for Ireland

Major changes to the European patent system will soon be coming into effect with the launch of the Unitary Patent and the Unified Patent Court expected to commence in Spring …

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