FAQ - Unified Patent Court (UPC)

What is the Unified Patent Court?

The UPC is a new international court common to its 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.

What is the structure of the Unified Patent Court?

The UPC will consist of a decentralised Court of First Instance, with local and regional divisions located in the contracting Member States, a central division 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.

What competence does the Unified Patent Court have?

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

  • actions for actual or threatened infringements and related defences
  • actions for declaration of non-infringement
  • actions for provisional and protective measures and injunctions
  • actions for revocation
  • counterclaims for revocation.

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.

What are the arrangements for the transitional period (opt-out scheme and choice of forum) for the Unified Patent Court?

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:

  • Actions for infringement or for revocation may still be brought before national courts (Article 83(1) of the UPC Agreement).
  • A proprietor of or an applicant for a European patent granted or applied for before the end of the transitional period will be able to opt out of the UPC's jurisdiction in respect of that European patent or application for the entire lifetime of the patent, unless an action has already been brought before the UPC. To do this, the patent proprietor will have to notify an opt-out to the Registry of the UPC. The opt-out will take effect upon its entry in the Register (Article 83(3) of the UPC Agreement). It will be possible to withdraw any such an opt-out at any time, unless an action has already been brought before a national court (Article 83(4) of the UPC Agreement). The sunrise period for the possibility of opting out in respect of European patents and European patent applications is planned to start three months before the UPC becomes operational.

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.

When will the Agreement on a Unified Patent Court enter into force?

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 Germany, France and Italy.

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.

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