The Unified Patent Court
Europe's new patent regime
The new patent regime in Europe will have two main elements: the unitary patent (UP) and the Unified Patent Court (UPC).
The UP will be granted by the European Patent Office and will provide uniform protection across all participating EU member states.
The UPC will be a single, specialised patent court across all participating EU member states.
Countries participating in the UPC and the UP
The map below shows those member states that have agreed to participate in the UP and the UPC. Italy formally joined the UP system in September 2015.
This leaves Spain, Poland and Croatia as the only EU member states that are not expected to participate fully.
Structure of the UPC
The UPC will comprise a Court of First Instance and a Court of Appeal.
The Court of First Instance will have a central division, headquartered in Paris, with sections in London and Munich. It will also have several local and regional divisions throughout the EU.
The Court of Appeal will be in Luxembourg. In the central division, cases will be heard by a panel consisting of two legally qualified judges and one technically qualified judge. In the local and regional divisions, cases will be heard by three legally qualified judges, with the possibility of adding a technically qualified judge in some cases.
The panel in the Court of Appeal will consist of three legally qualified judges and two technically qualified judges. Each panel will have to include judges from at least two different member states. In some cases, it will be possible to appeal from the Court of Appeal to the EU Court of Justice.
Competence of the central and local/regional divisions
Infringement actions, including those seeking preliminary injunctions, must be brought in the local or regional division where the infringement occurred or where the defendant is domiciled.
If there is no relevant local or regional division, actions must be brought in the appropriate section of the central division.
Actions for revocation, or for a declaration of non-infringement, must be brought in the appropriate section of the central division:
Cases in the central division will be divided according to the technical field of the relevant patent.
- Cases involving pharmaceuticals, life sciences or chemistry will be heard at the section in London.
- Mechanical engineering cases will be heard at the Munich section.
- Cases involving any other field, including the heavily contested field of telecoms, will be heard at the seat of the central division in Paris.
Locations of the central and local/regional divisions
All participating member states can establish local divisions in their territory or join with other member states to establish regional divisions; these will hear cases from the member states in that region.
There have been discussions about establishing several regional divisions, but only one seems likely: a regional division encompassing Sweden and the Baltic States (Latvia, Lithuania and Estonia). There are concrete proposals for local divisions in several member states, and preliminary discussions elsewhere.
Germany intends to host four local divisions, reflecting the volume of patent actions heard by the German courts.
We expect several member states will neither host a local division nor be members of a regional division. Infringement actions that would otherwise be brought in these countries will be heard in the central division.
Timeline for proceedings
UPC proceedings will comprise a written phase, an interim phase and an oral hearing.
The written phase is expected to take up to nine months. During this phase, parties will exchange detailed written briefs setting out their case.
Following the written phase, there will be a period in which the court, under the guidance of a judge known as the ‘judge-rapporteur’, will prepare for the oral hearing. This is known as the interim phase. The parties may have to substantiate their arguments or attend an interim conference to enable the judge-rapporteur to identify the issues and facts in dispute and to take further case management decisions. The interim phase is likely to be completed within three months of the end of the written phase.
The court will aim to hear each case at a one-day hearing and issue a written decision within six weeks of the hearing.
The aim is for the final oral hearing to take place within a year of the start of proceedings.