Unified Patent Court: Key Insights and FAQs
One of the most groundbreaking developments for patent applicants in Europe is the introduction of the Unified Patent Court (UPC). Before the UPC, national courts decided on the validity and violation of European patents. Inventors and patent proprietors had to enforce their patents for each member state of the European Union (EU). And third parties seeking to revoke a European patent also had no choice but to litigate throughout several jurisdictions simultaneously.
The purpose of the UPC is to address the challenges with engaging in parallel patent litigation in multi-jurisdictional patent disputes and infringements. For instance, dealing with different national courts can result in diverging decisions, resulting in legal uncertainty. This can also lead to forum shopping, where parties would choose to litigate at national courts where they will more likely get a favorable outcome. Therefore, the UPC serves as a one-stop court for enforcement or revocation of patents in Europe, replacing individual enforcement courts in different EU member states.
The UPC Agreement was signed in 2013 by most EU member states, but it faced opposition from other EU countries. The start of the UPC and first grants of the EPO of Unitary Patents is March 1st, 2023. Prior to this, the sunrise period, where early requests for opt-out may be filed in the UPC and changes may be made towards obtaining a Unitary Patent grant from the EPO, is expected to begin December 1st, 2022.
Overview of the UPC
The UPC is an international patent court with exclusive jurisdiction to decide on the infringement and validity of Unitary Patents and shared jurisdiction (with the national courts in the participating countries) over European patents. It ends the need for litigation in different countries, enhancing legal certainty and providing simpler, quicker, and more efficient judicial procedures.
It also harmonizes case law relating to the scope and limitations of the rights conferred and the remedies in cases of infringement. Its rulings will apply to all member states that have ratified the UPC Agreement.
The UPC is composed of a Court of First Instance, a Court of Appeal, and a Registry. The UPC Agreement also provides for a Patent Arbitration and Mediation Center and a Training Center.
Countries Covered by the UPC
The decisions of the UPC, whether to validate or revoke Unitary Patents and European patents, will be enforced simultaneously across all EU member states. Once Germany has ratified, there will be 17 countries participating in the UPC, including:
- The Netherlands
Of the 27 EU member states, three have not signed up for the Unitary Patent package, including Spain and Poland. Croatia acceded to the EU after the UPC Agreement was ratified, and hasn’t signed up, but will eventually do so. The United Kingdom, while an original signatory of the UPC Agreement, will not participate, as it has left the EU. The remaining EU countries have the option to join in at a later date when they decide to ratify the agreement.
The UPC’s jurisdiction automatically covers not only Unitary Patents but also existing European patents. For non-EU member states, such as the U.K. and Switzerland, and non-participating EU states, like Spain and Poland, the UPC will have no jurisdiction over European patents. The UPC will also lose jurisdiction over specific European patents if the patent owner chooses to opt them out of the UPC jurisdiction at any time before litigation commences.
Overview of the Unitary Patent
Aside from setting up the UPC, the EU member states that ratified the UPC Agreement also agreed on creating a single patent with a unitary effect called the Unitary Patent. This single, indivisible right covers all participating member states of the EU, providing borderless patent protection across most of Europe.
There’s no need to file individual patent applications for every EU jurisdiction, just one at the European Patent Office (EPO). The Unitary Patent does away with complex and expensive validation requirements that vary by jurisdiction. For countries that are not participating in the Unitary Patent, the requirement to validate after grant remains.
The option for a Unitary Patent is available to anyone, regardless of the country of origin. The Unitary Patent can coexist with nationally enforceable patents, or “classical” patents, in non-participating states.
Downsides of the Unitary Patent and the UPC
However, there are also risks in filing a unitary patent and litigating through the UPC. One of the main concerns of European patent holders is the risk of central revocation under the new system. A single decision by the UPC can revoke a European patent in all UPC member states. This makes it easy and efficient for third parties or suspected infringers to challenge the validity during the whole lifetime of a patent.
There is also the issue of unpredictability in how the UPC will decide on cases. As a new judicial body, there are no set precedents and no feedback or case law from the UPC. It can be risky to rely on the UPC, as it will still take several years to establish consistency in its positions.
It is also not necessarily more cost-effective to have a unitary patent or to litigate through the UPC. If infringement is limited to a small number of countries, UPC costs could be greater than proceedings before individual national courts.
Opting Out of the UPC
Hence, there is a case to be made for opting out of the UPC. European patent applicants and existing owners of European patents can opt-out of the exclusive jurisdiction of the UPC. This means litigation will still happen in individual national courts. Similarly, parties who want to revoke existing patents can choose litigation in either the UPC or in national courts, except when a patent has been opted out in which case only the national courts will be available.
The opt-out lasts for the life of the European patent. However, the opt-out can be withdrawn. The opt-out procedure will only be available for the first seven years, extendable up to 14 years, on review after five years, from when the UPC comes into force.
Translations Under the UPC
The UPC Agreement also established a language regime applicable for the Unitary Patent. There are many changes regarding the translation of patents within Europe. However, other current translation requirements will not change.
What Will Not Change?
Applications for European patents can be filed in any language, and not only the official languages. However, the three official languages of the EPO are English, French, and German. If the application is not filed in English, German, or French, a translation into one of the official languages of the EPO should be provided.
The EPO will then conduct the proceedings in the language in which the patent was granted. Every document should be translated into the language of proceedings, with the party submitting the documents bearing the translation costs. Just before grant of a European patent, the claims must also be translated into two other official languages other than the language of the proceedings.
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