Preparing for change
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:
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.
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