The Unified Patent Court – Overview and Background.

(A) The current situation:

Currently, national courts and authorities of the contracting states of the European Patent Convention are competent to decide on the infringement and validity of European patents.

In practice, this gives rise to a number of difficulties when a patent proprietor wishes to enforce a European patent – or when a third-party seeks the revocation of a European patent – in several countries: high costs, risk of diverging decisions and lack of legal certainty. Forum shopping is also inevitable as parties seek to take advantage of differences in national courts’ interpretation of harmonized European patent law and in procedural laws, as well as differences in speed (between “slow” and “quick” courts) and in the level of damages awarded.

The Unified Patent Court Agreement addresses the above problems by creating a specialized patent court, the “Unified Patent Court”, or UPC, with exclusive jurisdiction for litigation relating to European patents and European patents with unitary effect (unitary patents).


(B) The UPC Structure:

The UPC will comprise a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance will be composed of a central division (with seat in Paris and two sections in London and Munich) and by several local and regional divisions in the Contracting Member States to the Agreement. The Court of Appeal will be located in Luxembourg.


(C) Panel Composition:

The UPC panels will have both legally and technically qualified judges from all over Europe.

Panels in the local/regional divisions will be made up of three legally qualified judges. In addition it will be possible to appoint a technically qualified judge from a pool of judges, either on request of one of the parties or on the panel’s own initiative. For local divisions, two of the three legally qualified judges must be nationals of the contracting state in which the division is set up if this state has 50 or more patent cases per year. Otherwise, only one judge from this state will be required. For regional divisions the same rule applies with the condition that two judges come from the region.

Panels in the central division will be made up of two legally qualified judges who are nationals of different contracting member states and one technically qualified judge with qualifications and experience in the relevant technological field.  When hearing actions concerning certain EPO decisions, the panel will be composed of three legally qualified judges.

Panels in the court of appeal will be made up of three legally qualified judges who are nationals of different contracting member states and two technically qualified judges with qualifications and experience in the relevant technological field.


(D) Entry into force

The UPC will come into existence and start its operations immediately after the UPC Agreement enters into force.

As explained by the UPC Preparatory commitment, “the Agreement will enter into force on the first day of the fourth month after the fulfillment of the following two requirements (whichever is the latest):

1. The deposit of the thirteenth instrument of ratification, including Germany, the United Kingdom and France (the three Contracting Member States in which the highest number of European patents had effect in 2012).

2. The date of entry into force of the amendments to Regulation (EU) No 1215/2012 (Brussels I Regulation) concerning its relationship with the Agreement.[4]” The European Commission is expected to present a proposal during 2013. The necessary amendments can then be adopted and enter into force before the target date of the entering into force of the UPC in early 2015.

The Preparatory Committee is officially working towards early 2015 as a target date for the UPC to be set up.


(E) Implementation

The signatory states of the UPC Agreement are working together to ensure that the UPC is fully operational by the time the Agreement comes into force. To this end the Preparatory Committee oversees work in five main areas:

  • Legal framework of the UPC,
  • Financial aspects of the court,
  • IT,
  • Facilities,
  • HR & Judicial Training.

Each area has been assigned to a working group with the responsibility to develop proposals. The details and the target dates are established in the roadmap of the Preparatory Committee which is published on the official website of the Committee and can be found here.


(F) Enforcement of UPC decisions

Any ruling by the court on a patent will be simultaneously valid in all countries in which that patent has been validated and will be enforced under procedures governed by the law of the country(ies) where enforcement takes place.


 (G) Fees

The fee system for the court is yet to be finalized, but will be agreed upon by the participating Member States according to Article 36 (3) of the Agreement. In setting the fees Member States will need to balance the need to ensure the Court is accessible for users, especially SME’s, with the requirement in the Agreement that the system will eventually self financing.