The Unified Patent Court
The Unified Patent Court’s structure
The new patent regime in Europe has two main elements: the unitary patent (UP) and the Unified Patent Court (UPC).
A UP is granted by the European Patent Office and provides uniform protection across all participating EU member states.
The UPC is a single, specialised patent court across the same countries.
Countries participating in the UP and the UPC
All EU member states apart from Spain, Poland and Croatia have agreed to participate in the new patent regime, with 17 having already ratified to participate fully from the start, as shown in the map below.
Structure of the UPC
The UPC has a Court of First Instance and a Court of Appeal.
The Court of First Instance has a central division headquartered in Paris and partly in Munich (another part may in the future be located elsewhere in the EU). It also has several local and regional divisions throughout the EU. References on matters of EU law are to the Court of Justice of the European Union.
The Court of Appeal sits in Luxembourg.
What cases will the divisions hear?
Infringement actions, including those seeking preliminary injunctions, must be brought in the local or regional division where the infringement occurred or where the defendant is domiciled.
If there is no relevant local or regional division, actions must be brought in the appropriate section of the central division.
Actions for revocation, or for a declaration of non-infringement, must be brought in the appropriate section of the central division.
Cases in the central division are divided according to the technical field of the relevant patent.
- Mechanical engineering cases are heard at the Munich division.
- Cases involving telecoms, transport, textiles, physics and electricity are heard at the seat of the central division in Paris.
Cases involving pharmaceuticals, life sciences or chemistry were supposed to be heard at the London section. Following the UK’s withdrawal from the UPC Agreement, the UPC has confirmed that actions pending before the central division relating to:
- patents in International Patent Classification section (A) (“Human Necessities”, which includes pharmaceuticals and medical devices, but also foodstuffs) shall be assigned to the seat in Paris;
- patents in International Patent Classification section (C) (“Chemistry”, which includes pure chemistry (organic and inorganic compounds and their methods of preparation), applied chemistry (compositions contains compounds like glass, ceramics and plastics) and metallurgy) shall be assigned to the section in Munich.
In a press release, the Italian foreign office has confirmed that Milan will be the third seat of the UPC’s central division although it is unclear when and whether all competencies previously assigned to London will transfer to the new seat.
All member states can establish local divisions in their territory or join with other member states to establish regional divisions: these hear cases from the member states in that region.
There have been discussions about establishing several regional divisions, but only one has been confirmed: a regional division encompassing Sweden and the Baltic States (Latvia, Lithuania and Estonia).
Local divisions have been confirmed in Austria (Vienna), Belgium (Brussels), Denmark (Copenhagen), Finland (Helsinki), Germany (Munich, Mannheim, Dusseldorf and Hamburg), France (Paris), Italy (Milan), Netherlands (The Hague), Portugal (Lisbon) and Slovenia (Ljubljana).
Not all member states will host a local division or be members of a regional division. Infringement actions that would otherwise be brought in these countries will be heard in the central division.
Judges of the divisions
In the central division, cases are heard by a panel consisting of two legally qualified judges and one technically qualified judge.
In the local and regional divisions, cases are heard by three legally qualified judges, with the possibility of adding a technically qualified judge in some cases.
The panel in the Court of Appeal consists of three legally qualified judges and two technically qualified judges. Each panel has to include judges from at least two member states.
Timeline for proceedings
UPC proceedings comprise a written phase, an interim phase and an oral hearing. The aim is for the final oral hearing to take place within a year of the start of proceedings, with a decision up to six weeks later.
The written phase could take up to nine months. During this phase, parties exchange detailed written briefs setting out their case.
Following the written phase, there is a period in which the court, under the guidance of a judge known as the ‘judge-rapporteur’, prepares for the oral hearing. This is known as the interim phase. The parties may have to substantiate their arguments or attend an interim conference to enable the judge-rapporteur to identify the issues and facts in dispute and to take further case management decisions. The interim phase should be completed within three months of the end of the written phase.
The court should aim to hear each case at a one-day hearing and issue a written decision within six weeks of the hearing.