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 in Milan (human necessities, excluding SPCs).
The court also has many local divisions and a regional division (the Nordic Division) (see here). Other local/regional divisions may be established in the future. 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 typically this has only happened if there is also a central revocation action happening.
The UPC primarily applies its own law. The grounds of invalidity of traditional European patents and Unitary Patents are governed exclusively by the existing provisions of the European Patent Convention. The provisions governing acts of infringement are contained in the UPC Agreement itself. The law governing the Court’s procedure is contained both in the UPC Agreement and in the Rules of Procedure based on it. 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.
The Judges in each of the central, local and regional divisions interpret the UPC Agreement and the Rules of Procedure. In the first couple of years of operation, we have seen some “couleur locale” developing in different Divisions. Over time, the case law of the Court of Appeal is expected to impose more consistency across the Divisions. Of course, this relies on issues of interest being appealed and cases not being settled before judgement.
