Briefings

UPC: WHAT IS THE UNIFIED PATENT COURT?

This is part of our series of articles on the Unitary Patent and Unified Patents Court.

The decades-long project to create a single European patent right (the Unitary Patent) and a centralised European litigation forum (the Unified Patent Court) is now expected to take effect before the end of 2022. This series provides a reminder of the elements of the system and the preparations that patentees and applicants should make.  

Here, we provide an overview of the Unified Patent Court and give an understanding of its possible impact on existing patents. 

Current arrangements 

At the moment, once a patent has been granted by the European Patent Office (EPO), the patentee must go through a process of “validation” to bring that patent into effect in each country of interest. Such a “classical” European patent therefore takes the form of a “bundle” of national patents, after grant. Each patent is independent of the others in the bundle. If the patentee wishes to prevent infringing activity by a third party in each country, they must launch infringement proceedings against that party in every relevant country. Likewise, if a third party wishes to challenge the validity of the patent, they must bring revocation proceedings in each country. Differences in procedure and national law in each country can result in different outcomes. 

Inevitably, therefore, the costs associated with enforcing or challenging a patent across Europe can be high. As with everything, this has advantages and disadvantages, depending on the depth of your pockets and whether you’re attacking or defending. As well as seeking to reduce costs, there has been a perceived need to reduce the current system’s potential for different outcomes. This has been a further driver for forming the new court and patent right. 

What is the UPC and what is its impact on existing patents? 

The Unified Patent Court (UPC) will be a new court which will be the forum for litigation of the new European unitary patent, which we discuss in more detail here. Importantly, though, it will also be the default forum for existing “classical” European patents, unless they are “opted out” from the jurisdiction of the court. 

A decision by the UPC to revoke or limit a classical European patent would take effect in all the countries which are signed up to the system. This could be almost all the countries in the “bundle”. Although the impact of this is lessened by the fact that the United Kingdom will no longer be involved (as a result of Brexit), important jurisdictions are still covered, including France and Germany. The countries which will be signed up to the system from its start date are listed here. Other countries may join in due course, though non-EU states (including the UK) can never be involved. 

In our other articles in this series, we examine the pros and cons of allowing an existing bundle of national patents to be subject to the jurisdiction of the UPC. We will also look at the set-up of the court and how cases there will be processed.  

In the meantime, if you have any questions about this new system and how it might affect you, please contact us.

This article should not be taken as legal advice, it is for guidance only.