The Unified Patent Court
The Unified Patent Court (UPC) will have exclusive jurisdiction over the new Unitary Patents (UPs), providing a single forum for pan-European infringement and revocation. The UPC’s jurisdiction will also extend to all EPs already granted by the EPO unless an opt-out is filed. An opt-out keeps the EP in the current system, in which litigation must occur state-by-state in the national courts.
Irrespective of the opt-out, the UPC will have no jurisdiction over patents in non-EU Member States (e.g. UK, Switzerland, Turkey etc.) and EPs in non-participating EU states. Nonetheless, the UPC is likely to be an attractive forum e.g. for parties who missed the EPO opposition period or patentees who want a single decision on enforcement across several participating Member States.
This new international court borrows from across the European legal traditions
The UPC offers a number of new opportunities for both patentees and other parties.
In particular, a patentee can seek enforcement (including a preliminary injunction) through a single court system in all participating Member States, and a defendant can deal with all issues in one counterclaim or revocation action. At present, the only mechanism for central revocation of a patent is via an EPO opposition, which is only available for a nine month period following grant. After the opposition period has expired, a litigant has no option but to commence revocation actions in multiple national courts.
The emphasis of the UPC procedure will be on written submissions, with a one-day hearing. However, there will be discretion in procedural matters, for example with respect to bifurcation, document production, or use of witnesses and experts. The UPC should offer a reasonably rapid decision on a case, with 12 months from commencing proceedings to judgment being the target.
The UPC will be comprised of the Court of First Instance, based in a number of locations, and divided into Central, Local and Regional Divisions, with appeals heard by the Court of Appeal in Luxembourg. Alexander Ramsey has been appointed as Registrar of the UPC, also based in Luxembourg. In addition, the already-existing Court of Justice for the European Union (“CJEU”) will have limited jurisdiction to hear questions on EU law referred by the Courts of First Instance or the Court of Appeal. The UPC Rules set out a single procedure to be followed for all actions, whether before the Central, Regional or Local Division or the Court of Appeal.
Infringement cases will be heard at the Local or Regional Division where the infringement occurred, or the Local or Regional Division where the Defendant (or one of them) has a place of business, or the Central Division if the Defendant is domiciled outside the EU. For revocation proceedings or declarations of non-infringement, the cases will be heard at the Central Division, or the division where existing infringement proceedings are pending if applicable. While the UPC retains the convenience of first instance courts often close to the parties, all divisions have multinational panels and will apply the same rules.
Since there is one set of proceedings (rather than multiple national proceedings as we have now), only one set of costs will be incurred. The losing party will be obliged to pay some of the other party’s costs, something common in the UK but unusual at the EPO and across much of Europe.