Unified Patent Court (UPC)
Das Unified Patent Court (UPC) is an international court established by the Agreement on a Unified Patent Court (UPCA) and is responsible for legal disputes concerning European patents and the unitary patent. The UPC is a significant step toward harmonizing patent protection and patent litigation within the European Union. It started its operations on June 1, 2023 and forms a central component of the new European patent system.
Legal basis and objectives of the Unified Patent Court
Agreement on a Unified Patent Court (UPCA)
The legal basis of the Unified Patent Court is the Agreement on a Unified Patent Court (UPCA), which was signed on February 19, 2013 by an initial 25 EU Member States. The UPCA regulates the organization, jurisdiction, procedures, and legal effects of the UPC’s judicial activities. The UPC forms part of the so-called “European Patent Package”, which also includes the Regulation (EU) No. 1257/2012 (establishing the unitary patent) and the Regulation (EU) No. 1260/2012 (translation arrangements for the unitary patent).
Aim and significance
The UPC aims to centrally coordinate the enforcement and challenge of European patents and unitary patents, thereby overcoming the previously fragmented national enforcement systems. The UPC is intended to ensure legal certainty, predictability, and efficiency in patent litigation within the participating EU Member States.
Organization and structure of the Unified Patent Court
Jurisdiction and seat
The Unified Patent Court consists of a Court of First Instance and a Court of Appeal. In addition, a Registry has been established for administrative support.
Court of First Instance:
- It is divided into a central division, local divisions, and regional divisions.
- The central division is located in Paris (main seat), Munich, and Milan.
- Local divisions exist in participating countries, including Düsseldorf, Hamburg, Mannheim, and Munich.
Court of Appeal:
- The seat of the Court of Appeal is in Luxembourg.
Composition of the panels
A panel of the UPC is generally composed of three judges. There is a mix of technically qualified and legally qualified judges, and in proceedings involving technically complex matters, at least one technically qualified judge is always involved.
Language rules
Proceedings before the UPC can generally be conducted in the language of proceedings of the European Patent Office (German, English, French) or in the language of the respective Member State. The central division primarily operates in the official languages of the European Patent Office.
Jurisdiction of the Unified Patent Court
Subject-matter and territorial jurisdiction
The UPC is specifically responsible for:
- Unitary patents,
- European patents (both before and after the entry into force of the UPCA, unless they are subject to an opt-out),
- Supplementary protection certificates based on these patents.
It rules on the following matters:
- Actions for infringement and injunction,
- Actions for revocation,
- Applications for provisional measures (e.g. preliminary injunction),
- Actions for damages,
- Applications for a declaration of non-infringement,
- Compulsory license disputes.
For old patents (European patents granted before the UPC entered into force), a transitional arrangement exists. Holders can exclude the jurisdiction of the UPC by submitting an opt-out declaration, so that national courts remain competent.
Personal jurisdiction
The jurisdiction of the UPC covers all natural and legal persons, regardless of their nationality or registered seat, provided that the conduct at issue takes place in the territory of the participating states or the effect of a patent extends to these states.
Proceedings before the Unified Patent Court
Proceedings
Proceedings before the UPC are characterized by streamlined case management and short deadlines. Key elements include:
- electronic filing of claims,
- exchange of pleadings within set deadlines,
- oral hearing (usually within about 12 months after filing the claim),
- taking of evidence by experts and witnesses,
- appeal proceedings before the Court of Appeal.
Taking of evidence
The UPC recognizes auxiliary actions such as inspection (comparable to the “Dawn Raid”) and proceedings for preservation of evidence (e.g. in case of imminent loss of evidence). Orders for the production of documents (“Discovery Light”) are also possible.
Appeals, costs, and enforcement
Appeals
Appeals may be filed against first-instance decisions of the Unified Patent Court with the UPC’s Court of Appeal. The appeal must be filed within a set deadline, and is generally limited to points of law and procedural issues; however, under certain circumstances, new facts and evidence may also be considered.
Costs
Court fees are determined by a combination of fixed and value-based fees, calculated in accordance with the UPC fee schedule. The losing party typically bears the costs of the proceedings, including the opposing party’s legal fees, subject to upper limits.
Enforcement of decisions
Judgments and provisional measures of the UPC are enforceable in all participating Member States. Enforcement takes place in accordance with the national provisions at the place of enforcement.
Transitional provisions and the “opt-out” right
During the seven-year transitional period (with extension option) after the UPCA enters into force, it is possible to allocate jurisdiction exclusively to national courts for “classic” European patents and pending patent applications. This is achieved by submitting an opt-out declaration, provided no action has yet been filed before the UPC.
Participating states and scope
Not all EU Member States participate in the UPC system. In particular, Spain, Poland, and Croatia are currently not participating. The unitary patent system and the UPC cover those states that have ratified the UPCA. A unitary patent effective in these states can be enforced and defended before courts in all participating countries.
Significance and impact on patent law
The Unified Patent Court marks a turning point in European patent law. It brings a new quality to patent protection by enabling central legal protection for unitary European patents and defending against infringement. It reduces administrative burdens, increases the efficiency of enforcement, and ensures comparable treatment of patent matters in the participating states.
Literature and further information
- Agreement on a Unified Patent Court (UPCA) – consolidated version
- Regulation (EU) No. 1257/2012 of the European Parliament and of the Council
- Regulation (EU) No. 1260/2012 of the European Parliament and of the Council
- www.unified-patent-court.org
The Unified Patent Court, through its uniform procedures and decisions, makes a significant contribution to innovation, competitiveness, and legal certainty in the European patent system.
Frequently Asked Questions
What is the jurisdiction of the Unified Patent Court (UPC) in the legal context?
The Unified Patent Court (UPC) has exclusive jurisdiction for disputes relating to the unitary patent as well as classic European patents with unitary effect in the participating Member States. Its jurisdiction especially covers actions for infringement, revocation, declarations of non-infringement, provisional legal protection, and applications for preliminary measures. The UPC is also responsible for counterclaims for nullity in infringement proceedings. Importantly, during the transitional period (the so-called opt-out phase), holders of classic European patents can choose whether to use the traditional national court system or the UPC for these patents. After the end of this transition, the UPC is exclusively competent. The primary legal basis for its jurisdiction is the Agreement on a Unified Patent Court (UPCA), the Unitary Patent Regulation, and supplementary rules.
Which procedural law applies before the Unified Patent Court?
Before the UPC, the primary procedural law is the Agreement on a Unified Patent Court (UPCA) and the UPC Rules of Procedure, which contain detailed rules on litigation, taking of evidence, deadlines, procedural languages, and cost structure. In addition, the Court may supplement, if a particular aspect is not regulated in the UPCA or Rules of Procedure, with general principles of European civil procedure law and the law of the participating states. The Rules of Procedure are decisive for litigation, revocation proceedings, provisional injunctions, and procedures for preservation of evidence and describe transitions between written and oral proceedings where required for legal certainty. The language of proceedings is generally determined by the language of the patent, but may also differ upon request.
What appeal options are available against UPC judgments?
An appeal may be lodged against decisions of the first-instance panels of the UPC. This must be filed with the Court of Appeal, which is based in Luxembourg. The appeal must generally be filed within one month of service of the first-instance judgment. It may relate both to the merits of the case and to certain procedural decisions. The appeal proceedings involve a full re-examination of the dispute both legally and factually. There is also the possibility of correcting or revoking procedural acts. No further appeal (cassation) is provided for in the UPCA, so decisions of the Court of Appeal generally become final.
How is compensation for patent infringement determined by the UPC?
The UPC determines compensation for patent infringement based on the principles of the UPCA and with reference to European standards. The calculation of damages is typically made at the plaintiff’s discretion, either on the basis of lost profits, actual damage suffered, a reasonable royalty (fictitious license fee), or the infringer’s profits. Relevant factors include market share, the severity of the fault, and in exceptional cases, non-material aspects such as loss of business reputation. The Court may call on experts for damage assessment and order the disclosure of profit and sales figures. In cases of willful infringement, in addition to damages, the UPC may also order disclosure, destruction of products, and recalls.
What is the significance of the “opt-out” procedure in connection with the UPC?
The opt-out procedure is a legal mechanism that allows patent holders to exclude, for classic European patents and pending applications, the jurisdiction of the UPC until the end of the transitional period (max. seven years from the entry into force of the UPC, extendable by up to seven more years). The opt-out must actively be requested via the “Case Management System” of the UPC and applies to the entire patent—partial or subsequent deviation is excluded. The opt-out may be withdrawn at any time during the transitional period (“opt-in”), provided that no action is pending before a national court or the UPC. The procedure especially enables holders of already granted European patents to continue asserting their rights under national legal systems.
What role does the language of proceedings play at the UPC?
The language of proceedings at the UPC is basically determined by the Rules of Procedure and is usually the language of the patent (typically English, German, or French). However, Local and Regional Divisions may also allow one of the official languages of the respective Member State as the language of proceedings. In addition, upon motion by the parties and under certain conditions, a change of the language of proceedings may be possible, subject to the Court’s approval. The choice of language of proceedings has a significant impact on costs, evidence procedure, as well as accessibility and comprehensibility for the parties involved.
How are UPC decisions enforced?
The judgments and decisions of the UPC are directly enforceable in all participating Member States. Enforcement is carried out in accordance with the respective national laws of the state in which the measure is to be implemented. For monetary sums or injunctions, parties have recourse to national courts to have the decision treated as a nationally enforceable judgment. The UPC may order enforcement and, where appropriate, impose fines. The cross-border effect of UPC decisions is one of the system’s greatest legal advantages.
