UNIFIED PATENT COURT – MAIN FEATURES
The Unified Patent Court will be a new court based on an agreement between EU member states (currently not including Croatia, Poland and Spain). After coming into effect, the Court will enable the enforcement or revocation in a single court action of:
1. “Classical” European patents granted by the EPO in force in participating EU countries (unless opted out; see below);
2. European Unitary Patents; and
3. any related supplementary protection certificates (SPCs).
The Unified Patent Court will remove the potential need for multiple parallel court actions so the cost of patent litigation is expected to be lower.
What law will apply?
The basic law on validity and scope of protection will be drawn from the existing European Patent Convention (EPC). The Unified Patent Court Agreement contains provisions defining acts of infringement that generally correspond to existing national law.
The courts will be divided into a Court of First Instance (composed of a Central Division and Local and Regional Divisions) and a Court of Appeal. Infringement actions will need to be initiated before a Local or Regional Division, whereas revocation actions will need to be brought before the Central Division. Many states intend to have a Local Division or share a Regional Division, whereas the Central Division will be split between three locations, two of which will be Munich and Paris. The third Central Division that will hear chemistry, pharmaceutical and biotech cases was to be located in London, but following Brexit and the withdrawal of the UK from the UPC its final location is not yet known.
Will the court hear infringement and validity together?
Not necessarily; however, a court that decides to hear only infringement and send the validity proceedings to be heard separately is obliged to stay the infringement proceedings pending the outcome of the validity case if there is a high likelihood of the Patent being found invalid.
Many European Patent Attorneys will be able to represent clients before the Unified Patent Court.
During a transitional period, the new Court will run in parallel with the existing national patent court systems. This means that for at least the first 7 years of the Unified Patent Court, patent proprietors will be able to opt out “classical” European patents (both existing and new) from the competence of the new Court unless an action has already been brought before the new Court. This might be done to avoid risking important assets in an untested system. A further benefit of opting out is the flexibility it provides; thus, if a patent has been opted-out, the proprietor may then choose to withdraw the opt out (i.e. opt back in) in order to use the Unified Patent Court to commence an infringement action. The opt out can be withdrawn in this way as long as an action has not already been brought before a national court. Notably, there will be no official fees for requesting or withdrawing an opt out.
Importantly, European Unitary Patents can only be enforced and attacked in the new Unified Patent Court enabling infringement and revocation actions that will have central effect for all participating member states. It will not be possible to opt a European Unitary Patent out of the competence of the Unified Patent Court.
Relationship with oppositions
It will still be possible to file oppositions when the Unified Patent Court comes into existence and oppositions will remain an important tool for those wishing to challenge granted European patents (including European Unitary Patents). Oppositions will be a more cost-effective mechanism for challenging European patents as well as providing an effect across all 38 EPC member states (and not simply the participating EU states). In the case of parallel opposition and Unified Patent Court proceedings, the Unified Patent Court may stay its proceedings and/or request that the EPO accelerates the opposition proceedings.