Le 1ᵉʳ juin 2023, the Unified Patent Court (UPC) formally began operating, giving effect to a long-awaited reform of patent litigation in Europe. Two years on, it is time to move from surface commentary to a analyse structurée et critique.
That is the purpose of the series of articles we are launching today: a enquête doctrinale et stratégique, at the rate of two publications a week until the end of July, intended to bring out the strengths and the fault lines of the judicial system thus established.
A multi-level exploration of the UPC system
Beyond the fanfare that accompanied the birth of the UPC, the time has come to examine how it actually works — its aporias, its potential and its tensions.
The UPC rests on a structural balance that is in many respects paradoxical. Born of an international treaty, it nonetheless sits squarely within the normative environment of the European Union, whose rules it applies and whose tensions it undergoes. Presented as a court with exclusive jurisdiction over unitary patents, it nevertheless coexists, under the current transitional regime, with the national courts — at the risk of fragmenting litigation.
Pensée comme un instrument de centralisation, it is in reality organised around a complex web of local, regional and central divisions, which introduces forum considerations and even competition between courts stratégie procédurale exigeante, où chaque choix : juridiction, langue, calendrier, peut s’avérer déterminant, voire risqué.
As an unprecedented judicial experiment, the UPC cannot be assessed by a simple stocktaking. It must be examined in its workings: what logic truly governs its organisation? What institutional autonomy is guaranteed to it? How does it interact with the national and European legal orders? And what does its practical use reveal for those who rely on the system — SMEs, inventors and patent proprietors?
Each article in this series will address one of those aspects, à la lumière de décisions rendues, de textes applicables, mais aussi de la pratique contentieuse en cours de structuration.
A series launched to mark the UPC’s second anniversary
This legal and doctrinal project is set in a symbolic timeframe: the Court’s first two years of activity.
Two years in the course of which:
- The German local divisions have established themselves as the de facto leading forums;
- The rate at which first-instance decisions are overturned on appeal already allows telling statistical trends to be identified;
- The question whether the UPC is legitimately a “court of a Member State” within the meaning of Article 267 TFEU has been squarely raised;
- The effects of Brexit on opt-out and validation mechanisms have been closely examined.
These first analyses have already been published on the Kluwer Patent Blog
- Du Hast, But Not So Fast: an analysis of the rate at which decisions are overturned on appeal
- Discordant Frequencies: questioning the judicial nature of the UPC under EU law
- UPC After Brexit: the trajectory and resilience of UK law in the post-UPC ecosystem
- Licence to File: opt-out and post-Brexit validation strategies for UK patent proprietors
- Litigating in Inception: mapping the layers of litigation and reflections on restoring coherence
What lies ahead in the coming weeks
The next articles will pursue the same analytical approach, combining substantive law, procedure, litigation strategy and institutional analysis.
Each article will add a piece to the puzzle — sometimes expected, often not. The UPC is being built in real time; it falls to us to decode its mechanics.
Further reading