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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.

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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 Milan) 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

running track

Commencement of Operations

Following the ratification by Germany, the UPC Agreement will enter into force on 1 June 2023 and the UPC can officially launch operations on the same date.
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Milan confirmed as third seat of UPC Central Division

After the UK’s withdrawal from the UPC in 2020, the third seat of the UPC Central Division (formerly allocated to London) remained unclear. It is now confirmed that Milan will host this seat. The competency of this seat, however, is still not officially announced.
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german flag

German Ratification

Germany ratified the UPC Agreement on 17 February 2023, i.e. all conditions for the entry into force of the UPC Agreement have been met.
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gavel and book

Appointment of Judges

The UPC has confirmed the names of the newly appointed 85 judges and elected its Presidium. The list of judges and information on the presidium can be found here.
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Novelty Parent

Final UPC Rules of Procedure Published

The UPC’s Administrative Committee has revised the Court’s Rules of Procedure and adopted them in its meeting on 8 July 2022. The final UPC Rules of Procedure entered into force on 1 September 2022 and are now available here.
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Business meeting

Meeting of the Administrative Committee

On 8 July 2022, the Administrative Committee held its second meeting. Most importantly, the Committee (i) adopted the Court’s Rules of Procedure and its Table of Fees as well as the Organisational Rules of the UPC’s Patent Mediation and Arbitration centre, (ii) paved the way for the recruitment of staff and officials, and (iii) confirmed the setting-up of local and regional divisions of the Court of First Instance. The Chair of the Advisory Committee also presented the recommended list of the most suitable candidates to be appointed as judges, which is expected to be adopted and published soon.
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vienna skyline

UPC preparatory phase started

On 18 January 2022, Austria deposited its instrument of ratification of the Protocol on Provisional Application of the UPC Agreement (“PAP”). Austria is the 13th Member State to ratify the PAP, i.e. the provisional application period now starts to run, allowing the UPC to start necessary administrative processes.
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Slovenia

Slovenian Ratification

On 15 October 2021, the Slovenian government deposited its instrument of ratification for the Protocol to the Agreement on a Unified Patent Court on provisional application (“PAP”) and the UPC Agreement itself, i.e. only one more Member State needs to deposit the PAP ratification instrument before the UPC can start necessary administrative processes.
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Reichstag roof

German PAP Ratification

Germany has deposited its ratification of the Protocol to the Agreement on a Unified Patent Court on provisional application (“PAP”) on 27 September 2021. Once two further Member States deposit the ratification instrument, the UPC can start necessary administrative processes, such as adopting a budget and a case management system.

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UPC Hub

German Ratification

Following approval of the legislator and confirmation of the Federal Constitutional Court, the German President has signed the ratification bill for the UPC Agreement on 7 August 2021. Germany will likely deposit the ratification instrument during the provisional application period of the UPC Agreement.

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UPC Hub

Second German Constitutional Challenge

The German Federal Constitutional Court has dismissed the request for interim measures against the ratification. It found that the new complaints are not admissible. The dismissal enables Germany to conclude the ratification process (read more here).
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Webinar Series

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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.

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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.

 

FAQs

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.

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.

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)  

 

10. What are the court costs for UPC proceedings?

According to the Table of Court Fees issued on 8 July 2022, the following fees can be expected:

  • 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 €500,000, 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?

The UPC will officially launch operations on 1 June 2023.

Strategic considerations

1. Define opt-out strategy and prepare to opt-out for the sunrise period
2. Portfolio management considerations: should you obtain Unitary Patents, European Patents or national patents?
3. Review/amend licence agreements and take Unitary Patent System into account in new license agreements
4. Review/amend co-ownership agreements and take Unitary Patent System into account in new co-ownership agreements
5. Anticipate possibility of bringing or defending actions before the UPC

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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UPC Taskforce
Linklaters has created a dedicated cross-border taskforce of patent litigation specialists.
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