Unified Patent Court’s entry into force

On 1 June 2023, the Unified Patent Court (UPC) finally came into force after years of negotiations between Member States. The project was launched by the UPC Agreement of 19 February 2013, signed by 25 Member States, and ratified by 17 of them.

The UPC is now the exclusive body competent to decide on the infringement and validity of European patents and Unitary patents. This centralization of European patent litigation is a welcome sight, as patent proprietors and third parties will no longer need to engage in different proceedings in different countries to protect their rights. Decisions rendered by the UPC are automatically enforceable in all Member States which have ratified the UPC Agreement. This is of course a real time- and money-saver for litigants.

Another big improvement will be the creation of a sole European caselaw as the UPC will progressively render decisions. Gone are the days of diverging national caselaw on the infringement and validity of European patents, although these patents are specifically aiming at providing the same legal protection in every Member States. The centralization of litigation will also put an end to diverging national decisions in parallel proceedings on the same patent.

Contrary to what the name suggests, the UPC is in fact not a single court per se. It consists of a Court of First Instance and a Court of Appeal. The Court of First Instance is composed of a central division (with its seat in Paris and a section in Munich) and several local and regional divisions. The Court of Appeal is in Luxembourg. There are currently 14 local and regional divisions disseminated across the European Union.

88 judges will sit in these different courts and divisions. The rule is that each panel must be multinational. 3 judges sit during the first instance and 5 in the Court of Appeal. Concerning jurisdiction, the central division has jurisdiction over nullity proceedings, while local and regional divisions have jurisdiction over infringement proceedings when the infringement occurred, or the defendant is domiciled on their territory. However, parties are free to designate together in front of which division they wish to go.

When the central division has jurisdiction, cases are dispatched between its sections depending on the technical field concerned. For example, the Paris section has jurisdiction over nullity proceedings against European patents in the field of industrial techniques, transport, textiles, paper, fixed constructions, physics, and electricity.

It is important to note that a sunrise period was installed to enable a smooth transition to the new system. It will still be possible to seize the national courts for the next 7 years. During that period, the European patent proprietor can even notify to the UPC that he opts out, i.e. no proceedings can be engaged in front of the UPC providing that there haven’t been proceedings concerning the same patent before that notification.

Finally, when there are pending questions on pure European points of law (excluding procedural points of law, or questions on patentability, infringement etc…) the Court of First Instance can, and the Court of Appeal must ask the European Court of Justice for a preliminary ruling.

Zacharie PIERRE