Out-Law Guide | 01 Aug 2022 | 3:12 pm | 2 min. read
The European patent landscape is changing significantly with the introduction of the unitary patent (UP) and Unified Patent Court (UPC).
The UPC will provide a one-stop shop for patent litigation throughout a large part of Europe. Decisions will be made by local and regional divisions of the UPC based across Europe that sit under the umbrella of one centralised judicial framework.
The anticipated introduction of the new system, currently expected to take place in early 2023, will impact European patent filing and enforcement strategies for businesses in all sectors.
The UP will co-exist with, and be an alternative to, national patents and classic European patents (EPs). It will provide patent protection in all participating states, with a single patent registration, without the need for national validation.
The UPC is a new European court that will have exclusive jurisdiction for disputes relating to infringement and validity of UPs and classic EPs, for participating member states, which have not been "opted out" of the new system. The UPC will not have any competence to hear cases concerning, or rule on, national patents. UPC litigation will therefore sit alongside, rather than replace, national patent litigation.
For classic EPs that have not been opted out, there will be a dual jurisdiction in the transition period, and an election can be made by the claimant as to where to bring proceedings i.e. in the national courts or the UPC.
The UPC will have a Court of First Instance, which will be divided into local, regional and central divisions, and a Court of Appeal. References may be made to the Court of Justice of the EU on the interpretation of EU law.
Claims for infringement, and claims for revocation or declarations of non-infringement, will be handled differently before the UPC.
Claims for infringement will be brought before either the local or regional division in the member state where actual or threatened infringement has occurred; or where the defendant has residence or principal place of business or, in the absence of the former, the infringer’s place of business. If neither of these apply, or the member state does not have a local or regional division, the proceedings will be before the central division.
Revocation or declaration of non-infringement claims will normally be brought before the central division. This is unless an action for infringement of the same patent between the same parties has already been brought before a local or regional division. In that circumstance, these actions will only be able to be brought before the same local or regional division.
UPC decisions will have effect across all participating member states in respect of a UP, and for a classic EP, the territory of those participating member states for which the patent being litigated has effect. Similarly, where a central decision revokes a patent, or grants relief including preliminary injunctions (PIs) and final injunctions, those decisions will apply across all participating member states.
The UPC will offer transformational opportunities for businesses with operations in Europe, regardless of sector, impacting patent filing and enforcement strategies. It is important to understand the impact of this new system on your business and to adapt your European patent commercialisation and litigation strategies accordingly.