What is the UPC?

The Unified Patent Court (UPC) has exclusive jurisdiction over  Unitary Patents (UPs), providing a single forum for pan-European infringement and revocation. The UPC’s jurisdiction also extends to all EPs already granted by the EPO unless an opt out is filed.

An opt out keeps the EP in the classic system, in which litigation must occur state-by-state in the national courts.

The potential for injunctive relief across the UPC territory, without having to litigate country-by-country, has meant that the UPC is increasingly becoming a key venue for European patent litigation, and an important pillar of patent owners’ global patent litigation strategies.

Recent landmark rulings asserting the UPC’s jurisdiction over pre-UPC acts of infringement, and extending its jurisdiction to non-UPC EPC countries following the CJEU’s ruling in BSH v Electrolux, will only increase its appeal to patentees as a single powerful venue for patent enforcement.

The UPC offers a number of  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. Before 1st June 2023, the only mechanism for central revocation of a patent was via an EPO opposition, which is only available for a nine month period following grant. After the opposition period expired, a litigant had no option but to commence revocation actions in multiple national courts.

The UPC aims to offer rapid decisions: the preamble to the UPC Rules of Procedure notes that proceedings are conducted such that the final oral hearing on issues of infringement and validity at first instance should typically take place within one year. The UPC sets aggressive deadlines to achieve this target, and expects rapid responses by parties to proceedings.

There is heavy emphasis on written procedure, with parties bringing both infringement and revocation actions obliged to set out their case in detail in written pleadings at an early stage of proceedings. The parties in both types of action will also need to support their respective cases with whatever is the available and appropriate evidence (both fact and expert).

In practice, decisions are typically handed down within about 15 months, broadly in line with the UPC’s targets. Nevertheless, increasing caseloads have meant that we have seen popular divisions scheduling cases on longer timelines.

The UPC comprises 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 is Registrar of the UPC, also based in Luxembourg.

In addition, the Court of Justice for the European Union (“CJEU”) has 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 are generally 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, cases are generally 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 in the classic EP system), only one set of costs is incurred. The losing party is 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.

You can find a wealth of further information on the law and procedure of the UPC in our UPC Guide.