Unified Patent Court (UPC) and Unitary Patent Updates
Stay informed about the latest developments in the Unified Patent Court (UPC) and Unitary Patent system, including jurisdiction expansion, number of cases filed, and composition of judicial panels. Explore insights on the court's operations, challenges, and progress towards enhancing patent protection across Europe.
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Presentation Transcript
The Unified Patent Court (UPC) 10 months up and running DrKlaus Grabinski, President of the UPC Court of Appeal Fordham 31stAnnual IP Conference, 4 April 2024 All written and said is my personal view and not a communication of the UPC Court of Appeal.
Unitary Patent Unitary patent Introduction can be requested after grant of the EP within one month. requires validation and maintenance only before one patent office (EPO) reduces complexity and lowers costs confers protection throughout the territory of all UPC- States. Requests for a Unitary patent received in 2023: 21.771, in 2024 (19.3.2024): 22.373 Uptake rate in 2023: 17.5 %, in 2024 (19.3.2024): 23.7 % 2
Jurisdiction Unified Patent Court is a court common to (currently 17) EU Member States AT, BE, BG, DE, DK, EE, FI, FR, IT, LV, LT, LU, MT, NL, PT, SL, SE. RO: Parliament voted in favour of the ratification bill on 11 March 2024 IE: A Referendum will be held in June 2024 on the occasion of the 2024 European Parliament election. has jurisdiction on European Patents with Unitary Effect (Unitary Patents) European Patents that have not been opted-out or where the opt-out has been withdrawn. Introduction 3
Number of cases filed in the UPC 176 cases + 31 (129) counterclaims filed with the Court of First Instance (as of 29 February 2024) Introduction 96 actions for infringement Local/Regional Divisions 31 (129) counterclaims for revocation Local/Regional Divisions 24 actions for revocation Central Division (Paris seat or Munich section) 1 action for declaration of non-infringement Central Division (Paris seat) 1 action for damages Local Division 16 requests for preliminary measures Local/Regional Divisions 5 requests for preserving evidence Local/Regional Divisions 1 request for inspection Local/Regional Division 4
Number of cases filed in the UPC Introduction 5
Composition of panels Panel of 3 judges 2 legally qualified judges from different CMS 1 technically qualified judge Central Division Panel of 3 or 4 judges 3 legally qualified judges partly from and partly not from the CMS hosting the Local Division or from the CMS that share a Regional Division and, most of the time, 1 technically qualified judge (to be allocated when a counterclaim for revocation has been filed which has not been referred to the central division for decision [bifurcation] or upon request of a party or on initiative of the panel). Local/Regional Division Panel of 5 judges 3 legally qualified judges 2 technically qualified judges Court of Appeal 6
Language of Proceedings Language in which the patent concerned was granted. Central Division Introduction Official language(s) of the CMS hosting a LD or sharing a RD. CMS may designate one or more of the official EPO languages. (In practice all CMS designated English.) With the agreement of the parties and consent of the panel: the language in which the patent was granted (English, French or German) At the request of one party and after having heard the other parties, the CFI President may decide on the language in which the patent was granted. Local/Regional Division Language of proceedings before the CFI. Parties may agree on the language in which the patent was granted. Exceptionally the CA may decide on another official language of a CMS. Court of Appeal 7
Procedure before the UPC Stages of proceedings of an EP infringement action Written procedure Front loaded (all relevant facts and evidence relied on have to be submitted. Deadlines for written submissions Interim procedure Preparation of oral hearing Exploration of possibilities to settle the case Oral procedure Preliminary introduction to the case by the judges possible Pleadings of the parties Time limits may be set in advance Hearing of witnesses and experts. Judges and parties may put questions. Endeavour to complete the oral hearing in one day. Introduction 9
Procedure before the UPC Further procedural aspects: Videoconference Possible to some extent. Public access to the electronic register decisions and orders are published access to files only after decision by the judge rapporteur upon reasoned request Protection of confidential information Confidentiality club available Pretrial procedures Preservation of evidence and preliminary measures available (EU-Directive 2004/48) Permanent injunctions No eBay-test US style but injunctions must be proportionate, Art. 3(2) EU-Directive 2004/48. Introduction 10
