Unified Patent Court (UPC)

The Unified Patent Court (UPC) is the court with jurisdiction over proceedings relating to a unitary patent.

Specifically, this specialized jurisdiction has been created to deal with patent disputes in the member states of the European Union. It aims to provide a unified judicial system for patents in Europe, reducing the costs and complexities of patent disputes that can currently be brought before the national courts of each EU member state.

The aim is to harmonise access to patent protection, to strengthen legal certainty and to ensure the consistent application of patent law within the European Union. The system makes for greater efficiency and avoids parallel proceedings in several countries over the same patent.

Organisation et structure

La JUB sera composée d’un tribunal de première instance, of a cour d’appel et d’un registre central. It has jurisdiction to hear disputes concerning European patents and unitary patents. The unitary patent is a new type of patent granted by the European Patent Office (EPO), which takes effect in all the Member States of the European Union that have joined the system.

The Court of First Instance has a decentralised structure : it comprises a central division in Paris, with two sections in Munich and Milan. Local divisions have also been set up in various Member States, including Paris, Milan and Munich, together with regional divisions, notably in the Baltic and Nordic countries (Sweden, Estonia, Latvia, Lithuania).

The panels of the local divisions and regional divisions sit in benches of three legally qualified judges from different Member States, to which a technically qualified judge with expertise in the relevant field of technology may be added. This arrangement ensures balanced expertise and fair representation of the participating countries.

The central division, for its part, rules in particular on the validity of patents — for example in revocation actions or declarations of non-infringement — while the local and regional divisions have jurisdiction principally over infringement actions. The Court of Appeal sits in Luxembourg and is composed of five judges (three legally qualified and two technically qualified), which reflects the importance of a plurality of skills at the appeal stage.

The architecture of the Unified Patent Court also includes a mediation and arbitration centre and a training centre intended to secure the quality of its decisions. The whole operates under the UPC Rules of Procedure, which govern the conduct of proceedings before the Court.

The UPC is intended to make patent litigation more efficient, less costly and more predictable. It will also reduce the risk of conflicting patent decisions, which may currently be handed down by different national courts in different Member States.

Compétence

Thethe Agreement establishing the Court entered into force on 1 June 2023. It provides that the UPC has exclusive jurisdiction over all disputes relating to European patents and unitary patents, including infringement actions, revocation actions, claims for damages and actions concerning compulsory licences. During a transitional period of seven years, however, patent proprietors may opt out of the system, so as to remain before the national courts.

In infringement actions, the claimant may be the patent proprietor or a licensee (exclusive, or authorised by contract). The action may be brought before the local division of the State where the infringement occurred or is likely to occur, or before that of the defendant’s domicile. Failing that, the case may be brought before the central division.

The claimant must establish the validity of the patent and show that an act of infringement has been committed. It may seek provisional measures such as an immediate injunction to cease the infringing acts or a saisie-contrefaçon (order for the preservation of evidence). The UPC may also award damages, order the recall of infringing products, or order publication of the judgment at the defendant’s expense.

Revocation of a patent may also be sought, whether by way of a principal action or a counterclaim. Where revocation is ordered, it takes effect retroactively in all participating Member States. A patent may therefore lose its protective effect throughout the territories concerned as a result of a single decision.

Decisions at first instance may be appealed to the Court of Appeal. The appeal, which must be lodged within two months of service, has suspensive effect in principle. Certain provisional measures may nevertheless continue to produce their effects notwithstanding the appeal.

The foundations of this unified court, and its prospects, nevertheless remain debated, not least because of how far it innovates within the European judicial landscape.

Enjeux

One of the major challenges lies in the diversity of national legal systems and in the partial transfer of judicial sovereignty to a supranational body. Some Member States fear that their companies will no longer have as direct an access to their own courts in patent matters.

Moreover, theabsence of settled case law creates uncertainty as to the first decisions to come. Coexistence with the national courts during the transitional period may also complicate companies’ strategic choices on filing and on litigation.

From an economic standpoint, resorting to the UPC may generate higher costs for small and medium-sized enterprises, particularly where protection is sought in a limited number of countries. Conversely, for patents with a pan-European reach, the unified court brings simplification and greater certainty.

Finally, where a patent is revoked by the UPC, the loss of protection is immediate throughout the Member States concerned, which may represent a substantial risk. Ambitious as it is, the new system therefore calls for careful adaptation and reflection on the part of patent proprietors and their advisers.

Thepatent lawyer, ou UPC lawyer, accompagne ses clients dans leurs stratégies contentieuses devant cette juridiction. Il devra également maîtriser les règles du RPJUB ainsi que les spécificités des procédures devant chaque division du système unifié.

Voir notre pratique du contentieux devant la Juridiction unifiée du brevet and the evidence before the UPC.

Pour aller plus loin : l’entrée en vigueur de la juridiction, nos observations de représentant français devant la JUB, et cinq questions posées à cinq juges français de la JUB.