Introducing the Unified Patent Court (UPC)
Europe is about to experience the single biggest overhaul of its patent system in history with the introduction of a new Unitary Patent System comprising a unitary patent and a Unified Patent Court for many patent disputes.
What does the new system mean for you?
The impact of these changes is far-reaching, extending well beyond IP issues: to tax, commercial, corporate, and competition law. Decisions made now will affect patent filing, enforcement and commercialisation strategies for years to come, as well as the value of businesses.
Applicants will have new patenting alternatives and choices. The unitary patent will co-exist with, and be an alternative to national patents and classical European patents.
Currently, a patentee who wants EU-wide patent protection needs to validate the patent in each individual EU country creating a ‘bundle’ of European rights. The new unitary patent will provide patent protection in all participating states, currently up to 25, with a single patent registration, without the need for national validation.
The Unified Patent Court is a brand new court with exclusive jurisdiction for disputes relating to infringement and validity of the new unitary patents. It will also have jurisdiction to hear disputes relating to future and existing European patents – unless, during the transitional period, they have been ‘opted-out.’
It has various divisions right across Europe. The Central Division is located in Paris, with specialist sections in Munich and London.
The decisions of the Unified Patent Court will apply across all the participating member states.
Importantly, the new Unitary Patent System will enable a patent holder to enforce its patent rights in a single court and obtain relief against infringers across a minimum of 13 participating EU member states at a stroke (including both preliminary and final injunctions). On the flip side, a successful revocation action brought against a patent in the Unified Patent Court will result in the revocation of the patent across all these participating countries – currently potentially as many as 25.
So although the new Unitary Patent System delivers higher rewards, the risks are also greater.
Central vs. regional vs. local actions
Actions can be brought in a particular local or regional division depending on where the act of infringement is, or in the Central Division.
There will be both legally and technically qualified Judges. The intention is to allocate Judges with relevant expertise for each case.
The choice of divisions also opens up the possibility of forum shopping, enabling patent owners to choose the most convenient forum for them or the least convenient forum for the alleged infringer. Proceedings will typically be in the local language or, when before the Central Division, in the language of the patent.
It is important that innovative businesses review and revise strategies to protect and exploit their technology now. At Pinsent Masons, we are already helping our clients get ready for these changes so that they can capitalise on the commercial opportunities it presents and are armed to deal with the challenges they may face.