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Unified Patent Court

The Unified Patent Court will provide a single court system that will allow enforcing patents across several European jurisdictions in a single court proceeding. This will introduce an unprecedented proceeding for patent litigation in Europe. Linklaters has a dedicated taskforce preparing for the introduction of the UPC. On this microsite, we summarise for you key information on the UPC and regular updates on its launch.

The Unitary Patent System:
A Pan European Solution

The Unitary Patent System will allow for uniform patent protection in all contracting states. While the system is open to accession by any EU Member State, not all EU Member States have signed the UPC Agreement. Please click on the map to the right to see more.

The UPC will consist of a Court of First Instance, which will include a central division (seated in Paris, with sections in Munich and another contracting state) and local and regional divisions. Local divisions can be set up on request of a contracting state, with the possibility to set up one additional local division for every one hundred patent cases commenced in this state per calendar year (max. four local divisions per state). Regional divisions can be set up on request of two or more contracting states.

Feel free to contact our UPC taskforce if you have any questions on the Unitary Patent System.

UPC map

News & Updates

Novelty Parent

Final UPC Rules of Procedure Published

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Estimated Commencement of Operations

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Business meeting

Meeting of the Administrative Committee

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vienna skyline

UPC preparatory phase started

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Slovenia

Slovenian Ratification

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German PAP Ratification

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UPC Hub

German Ratification

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UPC Hub

Second German Constitutional Challenge

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UPC Hub

UK Withdrawal

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Webinar Series

The Unified Patent Court: Time to get ready!

In our first UPC webinar, we presented an overview of the new court system, as well as the benefits, opportunities and pitfalls for companies seeking or facing patent enforcement in Europe.

Date: 17 February 2022

Speakers: Pauline Debré, Bolko Ehlgen, Yohan Liyanage and Gaëlle Bourout

Read more here.

The Unified Patent Court: Should I stay or should I go (i.e. opt-out)?

In the second part of our webinar series, we explored both the fundamentals and the details of the so-called opt-out, including strategic considerations in relation to opting-out.

Date: 16 March 2022

Speakers: Bolko Ehlgen, Pieter Van Den Broecke and Jean-François Merdrignac

Read more here.

Beyond the Court Room – Implications on Contractual Arrangements

In this part of our UPC webinar series, we explored the points that should be addressed in contractual arrangements dealing with patents. We also considered how agreements could be interpreted if they are silent on the UPC.

Date: 11 May 2022

Speakers: Bolko Ehlgen, Gaëlle Bourout and Stephanie Farrington

Read more here.

A Closer Look: Anatomy of a UPC Proceeding & Views from the Industry

In this session of our UPC webinar series, we got more into the details of the proceedings before the UPC and points that companies need to consider to implement the best strategy for the UPC. Moreover, Mathilde Rauline, Head of Greater Europe Patent Litigation at Sanofi, joined the session to share her personal views and comments on the UPC.

Date: 05 July 2022

Speakers: Pauline Debré, Gaëlle Bourout, Bolko Ehlgen, Mathilde Rauline

Read more here.

Our webinar series will continue with sessions on other UPC topics

To sign up for future invites, please click here.

 

FAQs

1. What is a Unitary Patent?

  • A Unitary Patent (or “European Patent with unitary effect”) will allow patent applicants to acquire unitary patent protection in all countries which are Unitary Patent Participating Member States (25 Member States as of August 2021 – see our map above).
  • Applicants will be entitled to apply for a national patent, a European Patent and/or a Unitary Patent.
  • The initial examination and registration procedure for Unitary Patents involves applying for a European Patent at the European Patent Office. Applicants will have one month from publication of the grant of the European Patent to file a “request for unitary effect”.
  • A Unitary Patent will provide uniform protection and will have equal effect in all Unitary Patent Participating Member States. A Unitary Patent can be limited, transferred or revoked only in respect of all Participating Member States. However, a Unitary Patent may be licensed for all or some of the territories of the Unitary Patent Participating Member States.

2. How much will a Unitary Patent cost?

  • In terms of the overall costs, a Unitary Patent will be less expensive than a European Patent validated and maintained in four Member States.
  • The costs of the examination phase of a Unitary Patent before the European Patent Office will be the same as those of a European Patent, but translation costs will be lower because only one additional translation will be required for Unitary Patents.
  • To maintain a Unitary Patent, the patent proprietor will also have to pay annual renewal fees. The renewal fees for Unitary Patents have been set based on the renewal fees currently paid for the countries in which European Patents are most frequently validated today. They range from 35 EUR in the 2nd year to 4 855 EUR in the 20th year. Compared to the costs of a classic European Patent validated and maintained in all 25 Member States participating in the Unitary Patent system, the renewal fees for a unitary patent amount to only a fraction (e.g., less than a quarter in the 20th year). However, for European Patents designating only a limited number of Member States (typically less than four states), the renewal fees of a European Patent may be cheaper.
  • Read more on the EPO’s website.

3. What is the structure of the Unified Patent Court?

  • The UPC will consist of:
  •  A Court of First Instance, which will include:
  • A central division.
  • Local and regional divisions (which can be set up on request by one or more contracting Member States: one division for every hundred patent cases commenced in the contracting Member State per year).
  • A Court of Appeal in Luxembourg.
  • A Patent Mediation and Arbitration Centre (in Ljubljana and Lisbon).
  • A Training Facility for judges (in Budapest).
  • Note that the Court of Justice of the European Union will be able to receive requests for preliminary rulings on matters of European Union law from the Court of First Instance and the Court of Appeal. Its role will be to ensure the correct and uniform interpretation of Union law, and its decisions will be binding on the UPC.

4. Who are the judges composing the UPC?

UPC division  Number and types of judges
Central division
  • Two legally qualified judges from different Contracting Member States.
  • One technically qualified judge.
  • Before the Court of First Instance, parties may also agree to have their case heard by a single legally qualified judge.
Local division (<50 cases per year)
  • One national legally qualified judge.
  • Two non-national legally qualified judges.
  • Additional technically qualified judge upon request by one of the parties.
  • Before the Court of First Instance, parties may also agree to have their case heard by a single legally qualified judge.

Local division (>50 cases per year)

  • Two national legally qualified judges.
  • One non-national legally qualified judge.
  • Additional technically qualified judge upon request by one of the parties.
  • Before the Court of First Instance, parties may also agree to have their case heard by a single legally qualified judge.
Regional division
  • Two regional legally qualified judges.
  • One non-regional legally qualified judge.
  • Additional technically qualified judge upon request by one of the parties.
  • Before the Court of First Instance, parties may also agree to have their case heard by a single legally qualified judge
Court of appeal
  • Three legally qualified judges from different Contracting Member States.
  • Two technically qualified judges.

   

5. What is the jurisdiction of the UPC?

General jurisdiction of the UPC

The UPC will have exclusive jurisdiction over cases regarding:

  • Unitary Patents
  • Infringement and revocation actions concerning Unitary Patents cannot be brought before national courts.
  • European Patents (except if the proprietor has opted-out: see FAQ 7)
  • However, during the transitional period (7 years from the date of entry into force of the UPC Agreement, extendable by an additional 7 years), the UPC and national courts will have a shared jurisdiction to hear cases regarding European Patents (except if the proprietor has opted-out).
  • Supplementary Protection Certificates (SPCs) issued for a product protected by a Unitary Patent or a European Patent (except if the proprietor of the patent has opted-out).

The UPC will be entitled to:

  • Grant provisional or permanent injunctions applicable in all Unified Patent Court Contracting Member States.
  • Revoke Unitary Patents and/or European Patents with effect in all Unified Patent Court Contracting Member States.
Jurisdiction of the divisions of the UPC (Forum Shopping)

Infringement

  • Local or regional division of the place of infringement, or
  • Local or regional division of the defendant’s domicile.

Revocation and declaration of non-infringement

  • Central division.
  • Local or regional division if an action for infringement between the same parties and relating to the same patent is pending before this division.

Non-EU defendant

  • Local or regional division of the place of infringement, or
  • Central division.

General rules

  • If an action for infringement is brought before a division, any other action between the same parties relating to the same patent shall be brought before the same division.
  • The parties may agree to bring an action before the division of their choice, including the central division.
Bifurcation

  • Special regime applicable to revocation claims in case of pending infringement action before a regional or local division between the same parties and relating to the same patent.
  • 3 options for the regional or local division:

1. Proceed with both the infringement and revocation,

2. Refer the whole case to the central division (with parties’ approval),

3. Refer the revocation claim to the central division and:

a. Stay the infringement action, or

b. Proceed with the infringement action.

6. Which law will the UPC apply?

The applicable laws will include:

  • European Union law, including Regulation No 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection, and Regulation No 1260/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements.
  • Agreement on a Unified Patent Court of 19 February 2013.
  • European Patent Convention.
  • Other international agreements applicable to patents and binding on all the Contracting Member States.
  • National law.

Factors relating to the applicable law:

  • The Agreement on a Unified Patent Court contains statutory provisions regarding infringement.
  • Validity will be assessed based on the European Patent Convention.
  • National law will apply to Unitary Patents as objects of property (ownership, licences, etc.).
  • UPC can request preliminary rulings from the CJEU on matters of European Union law.

7. Is it possible to opt-out from the jurisdiction of the UPC?

For Unitary Patents: No

  • UPC exclusive jurisdiction is mandatory.

For European Patents: Yes

  • European Patent proprietors may opt-out from the jurisdiction of the UPC, on a patent-by-patent basis, in which case national courts remain (exclusively) competent for the lifetime of the patent.
  • Opt-out will be admissible from the entry into force of the protocol for a provisional application of the UPC Agreement (see FAQ 11 and below) and until the expiration of a transitional period of 7 years from the date of entry into force of the UPC Agreement and as long as no action has been brought before the UPC.
  • Locked-in situation: once an action (whether pending or concluded) has been brought before the UPC, the opt-out is no longer admissible.
  • The opt-out can be withdrawn as long as no action has been brought before a national court.
  • Locked-out situation: Once an action has been brought before a national court, it is no longer possible to withdraw the opt-out.
  • No opt-out fees.

Sunrise Period: European Patent proprietors will be entitled to file an early opt-out declaration before the Court opens

  • The preparatory Committee plans the sunrise period to start as soon as all required member states have ratified the UPC Agreement.

8. What is the timeline for proceedings before the UPC?

Infringement Action Timeline (if no counterclaim for revocation)
Infringement Action Timeline (in case of counterclaim for revocation and no bifurcation) 
Infringement Action Timeline (with counterclaim for revocation and no bifurcation)
Infringement Action Timeline (in no counterclaim for revocation)  

 

9. What language will be used in the UPC?

Division Language(s) of the proceedings
Central division
  • Language of the patent.
Local or regional division
  • National or regional languages, or
  • One official language of the European Patent Office (English, French, German), or
  • Language of the patent (with parties’ approval).
Court of appeal
  • Language of first instance, or 
  • Language of the patent (with parties’ approval), or
  • One official language of the contracting Member States (President’s decision with parties’ approval).
  

10. What are the court costs for UPC proceedings?

On 26 February 2016, the UPC Preparatory Committee announced that it had agreed the rules on court fees, “subject to legal scrubbing”:

  • Infringement and revocation actions (or counterclaims) before the UPC require the payment of court fees, consisting of a fixed fee and, for certain claims, an additional value-based fee.
  • The fixed fee for claims relating to infringement (infringement action, counterclaim for infringement, action for declaration of non-infringement, action for compensation for licence of rights) is €11,000 and an additional fixed fee of €3,000 is due for applications to determine damages.
  • In respect of the above actions that exceed a value of €50,000, additional value based fees will be due, ranging from €2,500 (for values up to and including €750,000) to €325,000 (for values exceeding €50,000,000).
  • A fixed fee of €20,000 is due for an independent revocation action.
  • For counterclaims for revocation, the fee will be the same as the fee of the related infringement action, subject to a €20,000 cap.
  • Additional fees are due for appeal proceedings.
  • Small and micro-enterprises are entitled to pay only 60% of the respective fee.

11. Timeline: When will the system go live?

According to the UPC’s website, it is estimated that the UPC will start operations in early 2023.

12. What happens now after the development in Germany?

While the dismissal of the constitutional complaints in Germany allows the German ratification to be deposited, there are still numerous things to sort out. It is, for example, still not clear where to move the Central Division that was originally meant for London.

13. Brexit – What now?

On 29 March 2017, the UK gave formal notification of its intention to leave the European Union. On 31 December 2020, the transition period ended, and the United Kingdom left the EU single market and custom union.

The UPC is not an EU body. However, the UK has chosen to withdraw from the system stating the potential involvement of the CJEU as a reason. It withdrew its ratification on 20 July 2020. As one of the three Central Divisions has originally been allocated to London, it remains to be seen where this division for pharmaceutical division will be seated.

We are well placed to assist with any Brexit-related IP (including UPC) related questions and concerns you may have in the coming weeks and months. We encourage you to raise your questions with any of the key contacts listed below or any of your usual Linklaters contacts. 

We have also gathered insights and briefings to help you consider, and deal with, the wider implications of Brexit in a dedicated microsite.

Strategic considerations

Advantages to opting-out from the jurisdiction of UPC:

  • Avoid the unpredictability of first UPC decisions.
  • Avoid the risk of revocation in all Contracting Member States in a very short time frame.
  • Avoid conflict with pending EPO proceedings (stays of proceedings uncertain before the UPC).

Benefits of staying in (i.e., benefits of not opting out of jurisdiction of UPC):

  • Exceptions with respect to patent infringement may not apply (e.g. Bolar exemption).
  • Influence on the new system, judges and first UPC decisions.
  • Avoid the risk of inconsistency between national decisions regarding national parts of European Patents.
  • Avoid launching proceedings in each country to obtain injunction and related costs.
    See FAQ 7 for further information on the opt-out

  • If you intend to obtain patent protection for five or more Participating Member States, choosing a Unitary Patent is likely to be cheaper than the traditional European Patent bundle of patents. But then it will be “UPC only”.
  • One of the key questions is to assess whether or not the added value of obtaining protection in more Participating Member States is worth the extra fees. If not, filing a European Patent and using the UPC (not opting out) could be a good option.
  • The advantage of a protection within all Participating Member States and the vulnerability to central revocation should be weighed against each other. For patents considered as “crown jewels”, filing European Patents (and opting-out) and national patents may complicate and delay competitors’ actions.
  • Applicable law should be taken into consideration in relation to the Unitary Patent as an item of property:
  • Laws of the Participating EU Member State in which the applicant of the patent either had its residence or principal place of business on the date of filing of the patent application or had a place of business on the date of filing of the EP application.
  • In case of co-ownership, the applicable law is the law of the Participating Member State in which the co-owner first listed on the application form has its residence or principal place of business on the date of filing of the patent application.
  • If the applicant has no residence or place of business within the territory of the Participating Member States, German law will apply (German law being the law of the Member State where the EPO is headquartered).
  • e.g. law applicable to the capacity of a person to represent a company and sign an opt-out on its behalf.

Key points to consider for licence agreements concerning European Patents:

  • Possibility for (exclusive) licensees to opt-out European Patents.
  • Right of exclusive licensee to bring infringement actions.
  • Possibility for a non-exclusive licensee to bring infringement actions.
  • Possibility for patent proprietor to join proceedings brought by the licensee.

Key points to consider for licence agreements concerning Unitary Patents:

  • Unitary Patents can be licensed for all or part of the Participating Member States.
  • Parties are free to choose applicable law (but validity, the legal effect, consequences of registrations, etc are subject to the law applicable to the patent as an item of property).

When there are multiple owners of a (European or Unitary) patent, the following issues should be considered:

1. The rights of co-owners of a Unitary Patent

  • Right to bring infringement actions and right to grant licences are determined by the national law applicable to the Unitary Patent as an object of property.
  • Rules relating to co-ownership differ from country to country and co-owners need to take this into account when drafting their contract.

2. Revocation action

  • If there are different owners of a European Patent in different countries, any application for its revocation must, under the UPC, be brought against all of them.
  • This needs to be anticipated in the contract (including costs issues).

3. Opt-out

  • Under the Rules of Procedure of the UPC, an opt-out for a European Patent must be declared by all owners.
  • Opting-out is no longer possible if one of the owners of a national part of the European Patent has brought an action before the UPC.
  • Opting-in is no longer possible if one of the owners of a national part of the European Patent has brought an action in a national court.
  • Need to agree on a common opt-out and litigation strategy in the contract.

4. Applicable law to the patent as an object of property

  • The applicable law is the law of the Participating Member State in which the co-owner first listed on the application form has his residence or principal place of business on the date of filing of the patent application.
  • This needs to be anticipated when filing the patent application.

Contact the UPC taskforce for guidance on bringing or defending actions before the UPC.

Reference materials

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