The UPC is a new supranational court common to 25 EU Member States. It will provide simplified, quicker and more efficient judicial procedures with high-quality decisions issued by panels comprising both legally and technically qualified judges sitting in an international composition. In addition, the UPC Agreement harmonises the substantive patent law governing the scope and limitation of the rights conferred by a patent and the remedies available in cases of infringement.
The UPC has been established by an international treaty: the UPC Agreement of 19 February 2013. It will have exclusive competence for the settlement of disputes in respect of both “classic” European patents and Unitary Patents. This exclusive competence is however subject to exceptions with regard to European patents: cases may still be brought before national courts, and proprietors of European patents may opt out from the UPC's exclusive competence during a transitional period of seven years, which may be prolonged by up to a further seven years. The opt-out will be effective for the entire life of the European patent concerned. The UPC's rulings will have effect throughout the territories of those Member States that have already ratified the UPC Agreement (the contracting Member States) at the time they are issued. The UPC will not have any jurisdiction over national patents.
The UPC will consist of a decentralised Court of First Instance, with local and regional divisions located in the contracting Member States and a central division with its seat in Paris and sections in London and Munich, and a common Court of Appeal seated in Luxembourg. The Registry will be set up at the seat of the Court of Appeal. The training centre for judges will be located in Budapest; the patent mediation and arbitration centre will be located in Lisbon and Ljubljana.
The UPC panels will sit in a multinational composition and consist of both legally and technically qualified patent judges. The procedure is designed in a way that judgments at first instance can be expected within approximately one year of filing the action.
As a general rule, the UPC will have exclusive competence in respect of civil litigation on matters relating to European patents, Unitary Patents, supplementary protection certificates issued for a product covered by such patents and European patent applications. Article 32 of the UPC Agreement provides that the UPC will have exclusive competence in particular for
The UPC will also act as an administrative court: it will have exclusive competence in respect of actions concerning decisions of the EPO in carrying out the tasks referred to in EU Regulation No 1257/2012 on the Unitary Patent system.
The UPC Agreement provides that the contracting Member States' national courts will remain competent for actions relating to patents and supplementary protection certificates which do not come within the exclusive competence of the UPC.
For a transitional period of seven years, which may be prolonged by up to a further seven years, the following options will be possible for litigation involving “classic” European patents:
It is important to note that the possibility of opting out or bringing an action before a national court during the transitional period is not available for Unitary Patents.
The UPC Agreement will enter into force on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession, including those of the three Member States in which the highest number of European patents had effect in 2012, namely France, Germany and the United Kingdom.
In October 2015, a Protocol to the UPC Agreement on provisional application was signed by representatives of the Member States. This Protocol will allow the institutional, organisational and financial provisions of the UPC Agreement to be applied before it enters into force. This will enable crucial decisions on the UPC's practical set-up – for example recruitment of judges– to be finalised before the UPC Agreement enters into force so that the UPC will be fully operational from day one. The provisional application phase will also be used to allow for early registration of requests to opt out of the UPC's jurisdiction.
This is a political decision which will have to be taken by the EU, its remaining Member States and the UK. It may be addressed as part of the Brexit negotiations.