What is the Unified Patent Court?

The Unified Patent Court is a real novelty: an international court for the enforcement of both traditional European patents and Unitary Patents. For traditional European Patents registered in the participating Member States, this new court can decide on infringement and validity for all of those registered European patents. For Unitary Patents, the court will decide on infringement and validity for all participating EU Member States. All EU Member States participate, except Poland, Spain and Croatia (and Croatia will possibly join at a later stage).

The court has a central division seated in Paris (mainly electronics, SPCs), with specialist divisions in Munich (mainly mechanical engineering and chemistry, excluding SPCs) and – as of June 2024 – in Milan (human necessities, excluding SPCs). Before the Milan central division opens its doors (replacing the initially planned third seat in London), the respective responsibilities of this division will be divided between Paris and Munich.

The court also has local divisions in Paris, Düsseldorf, Munich, Mannheim, Hamburg, The Hague, Brussels, Milan, Helsinki, Copenhagen, Dublin and Vienna. Further, there is a regional division for Sweden and the Baltic states (the Nordic Division). It is possible that in future there may also be a regional division for Hungary, Slovenia and Croatia and a regional division for Romania, Bulgaria, Greece and Cyprus. In the meantime, those countries without a local or regional division including therefore Luxembourg, Portugal and Malta, will refer their patent cases to the central division. The Court of Appeal is based in Luxembourg.

Infringement claims including counterclaims for invalidity are primarily heard in the local and regional divisions; independent validity cases are heard in the central division. Local and regional divisions may refer invalidity counterclaims to the central division –so-called bifurcation – but are not expected to do so as a matter of course.

It remains to be seen how the Judges in each of the local and regional divisions interpret the UPC Agreement and the Rules of Procedure. At least in the first few years of operation, it is expected that the Judges will be influenced by their previous national practices thereby allowing what has been termed a “couleur locale” to develop in different Local (or Regional) Divisions. Over time, the case law of the Court of Appeal is expected to impose more consistency across the Divisions.”

The UPC will primarily apply its own law. The validity of traditional European Patents and Unitary Patents is governed exclusively by the existing provisions of the European Patent Convention. The provisions governing the acts of infringement are contained in the UPC Agreement itself. The law governing the court’s procedure is contained both in the UPC Agreement itself and in the Rules of Procedure based on it. The final consolidated version of the Rules of Procedure was published on 29 August 2022. However, in addition there is a body of existing international law that also applies and in circumstances where that does not provide a solution, the court will apply national law as stipulated by private international law.