One for all: the UPC

The Unified Patent Court (UPC) will be a court common to all European countries that have joined the Agreement on a Unified Patent Court (UPCA). The UPC will have exclusive jurisdiction over

  • all European patents with unitary effect
  • all supplementary protection certificates
  • all European patents which have not yet lapsed on the date on which the UPCA enters into force or which are granted after that date
  • all European patent applications pending on the date on which the UPCA enters into force or filed after that date.

The UPC will not have jurisdiction for national patents and patents in non-EU member states.

The most important thing to bear in mind is that for you as a patent holder, the UPC will not change much. Especially not in Germany: here, in Europe’s most important court location for patent infringement proceedings, the UPC will be represented four times. Above all, you will benefit from the simplification that the UPC brings. This includes first and foremost the territorial extension of your patents to up to 24 countries, a uniform language in several countries, and the chance to enforce your patents across borders.

If, however, you do not wish to make use of the possibilities offered by the UPC system, you may choose to opt out your traditional European patent.

Structure and tasks of the UPC

How is the UPC structured? It is quite simple: the UPC consists of a Court of First Instance, a Court of Appeal, and a Registry. The Court of First Instance will have several local and regional divisions as well as a central division seats in Paris Paris. Germany – Europe’s most important court location for patent infringement proceedings – has the most local divisions: in Düsseldorf, Mannheim, Munich, and Hamburg. This makes Germany the country with by far the largest capacity for UPC proceedings. The UPC’s Court of Appeal will have its seat in Luxembourg.

Actions may be brought and heard before all divisions. As a rule, infringement cases will be heard by the division where the action was brought. As before, this is possible before a division in whose jurisdiction the infringement occurred. If the defendant is based outside the EU, the central division in Paris has jurisdiction.

One special feature is that one and the same division can decide on both the infringement and the validity of a patent. As a rule, this will be the competent local or regional division. In individual cases, however, infringement and validity may be decided in separate proceedings. It is also possible for the entire case to be referred to the central division in Paris, if the parties agree to such.

The principles already in force in Germany apply when it comes to the distribution of costs: court fees for proceedings before the UPC are usually paid by the claimant. Reimbursements, including attorney fees, are borne by the losing party.

Which countries does the UPC cover?

The UPC system is expected to cover 24 countries in the future. These are the EU member states that have signed and ratified the Agreement on a Unified Patent Court (UPCA). At present, these are (as of October 2021) 17 EU countries. 7 further EU member states have signed the UPCA, so their ratification – i.e. confirmation binding under international law – is likely. The United Kingdom, which left the EU, has withdrawn its ratification. Spain, Poland, and Croatia are not participating in the unitary patent system for the time being.

The unitary patent: EU-wide protection for your ideas

The European patent with unitary effect offers companies and inventors uniform protection for their innovations across the EU. In the future, this “unitary patent” will be effective in up to 24 EU member states and can be restricted, transferred, nullified, or can lapse for those states. Learn more about the unitary patent and how you can extend the protection of your existing patents in a way that makes sense while saving time and money!

Opting out: your decision for or against the UPC

If the UPC system does not align with your current IP strategy, you can also choose to opt out of it. This means that if you opt out of the UPC, your European patents (i.e. those already granted by the EPO) will remain in the existing system for a transitional period of at least seven years and the national courts will retain their jurisdiction in matters concerning these opted-out patents. Find out more about the pros and cons of opting out here!