Since the Unified Patent Court (UPC) opened its doors in June 2023 it has been busy handling nearly 300 cases. With the Milan Central Division seat opening in just a few months, and Irish ratification being actively discussed, we see the UPC rapidly becoming a key forum for patent disputes in Europe (especially because its decisions can apply across up to 17 states). In this article we provide a roundup of these developments, what they mean for businesses using the new system, as well as some of our experiences litigating at this new Court.
A busy start for the new Court
In February 2024, the UPC reported that the Court of First Instance had received 274 cases, including 96 infringement actions, while the Court of Appeal had received 27 appeals. The report also revealed that English is now used in nearly half of all total proceedings, suggesting that filing in English is increasingly seen as the preferred option. The popularity of the new Court means that the UPC is quickly developing a significant amount of case law which should provide welcome clarity for any businesses considering using the new system.
Carpmaels & Ransford has been busy assisting clients with all aspects of work at the UPC, including filing the first UPC revocation action, representing the appellant at the first hearing of the UPC Court of Appeal, advising on infringement cases, and representing clients faced with requests for preliminary injunctions. We have been impressed by the speed of the new Courts’s procedure. The short deadlines and active case management mean parties rapidly learn how the Court wishes to handle a wide range of issues, from changes of language to deciding the correct date of service. Indeed, it seems the Court will achieve its ambitious schedule to hear even complex revocation actions within a year of the revocation action being issued.
We have also filed a considerable number of protective letters at this new Court. These are particularly useful for those clients with pan-European operations who wish to minimise the risk of a preliminary injunction being granted without the right to first argue their case before the Court. Interestingly, we see that the UPC is prepared to nonetheless issue ex parte orders on cases with protective letters where those letters did not provide suitably compelling reasons for invalidity or non-infringement. These decisions confirm the importance of putting significant detail into protective letters to achieve the desired result.
The UPC supports the new Unitary Patent (UP) system which also burst into life in June 2023. UPs are a single patent issued by the EPO covering all participating Member States of the European Union (EU), and they have been increasingly popular with patentees. The EPO Patent Index reveals that, as of March 2024, 22,484 requests for UPs had been received, accounting for roughly 1 in 5 of all patents proceeding to grant. Since UPs can be enforced or revoked at the UPC only, this is another indicator of growing confidence in the new Court. The EPO’s index reveals that UPs are proving popular across a range of industries, led by the MedTech industry with 12 percent of total requests. Johnson & Johnson was the top filer with 364 requests for UPs, closely followed by companies such as Siemens AG, Samsung Group, Beckton Dickinson & Company, and Hoffman La-Roche Ltd. We have been excited to help our clients make use of this new cost-efficient route to patent protection across 17 European states.
Irish ratification
The Irish government has announced plans to hold a constitutional referendum in June 2024 to ratify the Agreement on the Unified Patent Court, although these are now on hold following unrelated political developments in Ireland. Should ratification go ahead, then Ireland will join the multinational Court and a local division of the UPC will be established in Ireland with at least one legally qualified Irish judge. From the point where the agreement takes effect, decisions taken at the UPC will have effect in Ireland, and newly requested UPs will additionally cover this important state. The addition of a common law jurisdiction to the multinational Court will further enrich the new system, which has its origins in a mix of common law and civil law traditions.
With Ireland likely to join the UPC at some point in the next few years, the number of EU countries in the UPC system will increase to 18, further increasing the reach of the Court and the potential cost benefits of UPs.
Central Division seat to open in Milan in June
The third seat of the UPC Central Division is due to open in Milan in June 2024, supplementing existing seats in Munich and Paris. As with the other courts of first instance at the UPC, Milan’s Central Division will be staffed by multinational judges applying the UPC. Given the growing demand for the UPC, the Milan Central Division will provide welcome additional capacity. It is expected that the Milan Division will hear a significant proportion of pharmaceutical cases alongside the Munich and Paris divisions.
If you have any questions concerning the UPC, please get in touch with your usual Carpmaels contact. We have over 70 qualified UPC representatives, both litigators and patent attorneys, and can advise you on how best to use the new Court. You can find further information about the UPC system via our UPC Hub which also includes a landscape tool summarising the countries involved and a UP cost estimator tool which shows the potential cost savings of using a UP.
