The UPC offers a number of new opportunities for both patentees and other litigants.
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 threats 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, divided into a Central, Local and Regional Divisions, with appeals heard by a Court of Appeal in Luxembourg. The UPC will also have a Court Registry, 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) is resident, 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.
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.