In direction of a Higher Patent System for Europe: The Unified Patent Courtroom (UPC)

Towards a Better Patent System for Europe: The Unified Patent Court (UPC)

On December 18, 2020, the Federal Council passed the law on the agreement on a unified patent court of June 20, 2013 (UPC agreement) with the required two-thirds majority. It was the last piece of the puzzle that paved the way for a unified patent system in Europe that is expected to be operational by 2022.

The entry into force of the UPC agreement was dependent on ratification by the three member states with the highest number of European patents, at that time Germany, France and the United Kingdom. France had already deposited its ratification in 2014 and the United Kingdom in 2018, but withdrew it in July 2020 due to Brexit. With its exit from the European Union, the United Kingdom refrained from participating in the establishment of a unitary patent system.

In Germany, the ratification process was a challenge after the Federal Constitutional Court in 2017 repealed the first German consent law to the agreement on a unified patent court.

The new unitary patent system in Europe consists of the establishment of a European unitary patent and a European unitary patent court. The basic legal framework is provided, among other things, by EU Regulation No. EU-1257/2012 and the UPC Agreement, which only comes into force on the first day of the fourth month after the required 16 instruments of ratification have been deposited. These are all now complete.

Uniform European patent protection has been in planning since the mid-1970s. For the European Union, the unitary patent, which necessarily includes the establishment of a unitary European patent court, is the central point of a new strategy for the protection of intellectual property.

The UPC Agreement provides for the establishment of a unitary patent court as a joint court of the participating member states for disputes over European patents with unitary effect. It is intended to provide exclusive jurisdiction over an extensive catalog of disputes, including, but not limited to, patent infringement claims, patent validity disputes and certain claims against decisions of the European Patent Office.

The Unified European Patent Court will consist of a court of first instance (with several local and regional chambers), mainly located in Paris, and an appeal court in Luxembourg.

National courts and authorities are currently deciding on issues relating to the infringement and validity of European patents. Your decisions are only effective in the respective national territory. This can lead to problems, for example if a patent holder wants to enforce a European patent in several countries or if a third party wants to request the revocation of a European patent. Parallel legal disputes in several countries are expensive and carry the risk of different decisions and a lack of legal certainty. Hence it has become common for parties to exploit the differences between national courts and their proceedings in their favor.

The UPC Convention addresses these issues by establishing a specialized unitary patent court with exclusive jurisdiction and harmonizing the scope and limits of the rights granted by the patent and the remedies available beyond the EU Enforcement Directive 2004/48 / EC.

The Unified European Patent Court will thus offer an effective forum for the enforcement of patents in Europe and end the need for parallel litigation in different EU member states. It will also harmonize substantive patent law as to the scope and limits of rights conferred by the patent and the remedies for infringement.

In practice, this will allow for a simpler, faster and more efficient judicial process.