European Union: Principal Developments Since Signature Of The Unitary Patent Court Agreement

Last Updated: 2 June 2014
Article by Charles Russell

The Unified Patent Court Agreement (UPCA) was signed on 19 February 2013 by 24 of the then 27 EU Member States. (Bulgaria, Poland and Spain did not sign.) Croatia joined the EU on 1 July 2013 but has not yet signed the UPCA.

Since the UPCA was signed, there have been significant changes in the position relating to the introduction of the proposed new patent regime (i.e. the unitary patent itself and the Unified Patent Court), which are noted below.


The unitary patent is highly unlikely to become operational until the end of 2015 at the earliest – and even then there are serious obstacles to be overcome.

CJEU dismisses challenges by Spain and Italy

Spain and Italy challenged the proposals for the unitary patent system before the Court of Justice of the European Union ("CJEU") (cases C-274/11 and C-295/11) in 2012.

The challenges related to the validity of the Council of the European Union decision of March 2011 authorising enhanced cooperation in the area of unitary patent protection – and if successful would have a major impact on the introduction of the new regime.

Spain and Italy argued, amongst other things, that EU legislation prevented EU Member States from taking advantage of the enhanced cooperation mechanism to create the new patent framework. Essentially they argued that the Council of the European Union lacked the necessary legal competence to establish the enhanced cooperation mechanism and the Council had misused their powers.

On 16 April 2013, the CJEU ruled that both countries' complaints should be dismissed – the CJEU said that the Council of the European Union had the necessary competence to use the enhanced cooperation mechanism and there had been no misuse of power; Spain and Italy's claims were unfounded.

Spain's new challenges

In March 2013, just prior to the CJEU's ruling above, Spain brought two new actions (cases C-146/13 and C-147/13) before the CJEU further challenging the EU Regulations relating to the new European patent with unitary effect. The further challenges related to breach of laws, lack of legal basis for the EU regulations, misapplication of case law (the Meroni doctrine) in regulation and administration of the proposed system and misuse of power.

The outcome of Spain's further challenge is unlikely to be known before 2015.

Rules of Procedure for the Unified Patent Court

The 16th draft Rules of Procedure for the Unified Patent Court (UPC) have been published for information only, taking into account comments received during the public consultation on the previous (15th) draft. The draft rules contain provisions concerning not only the basic procedure for the court but also matters such as opt-out, appeals and bifurcation (where infringement and validity proceedings are determined separately, as is the case in Germany's patent courts). The Legal Group of the Preparatory Committee will now examine the rules at the level of participating EU member states. The Legal Group, in the course of 2014, will seek input of users on all suggested amendments to the text since the written consultation.

Click here for the 16th draft Rules of Procedure.

Proposed amendments to "Brussels I Regulation"

EU Council Regulation No.44/2001 on jurisdiction and the recognition and enforcement of judgments in the European Union (the so-called "Brussels I Regulation") requires amendment for the UPC Agreement to be able to come into effect. On 12 December 2012 EU Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in the European Union was adopted.

However, this did not contain provisions which would enable the UPCA to come into effect. On 30 July 2013, the European Commission ("EC") published its proposal for amendments to the Brussels I Regulation.

The EC proposal should now be formally adopted and become law at the Council of Ministers' meeting in June 2014.

Signatories to the UPCA

Bulgaria signed the UPCA on 5 March 2013. However, Poland and Spain still have not signed the UPCA.

Croatia joined the EU on 1 July 2013 but has not yet signed the UPCA.

This will have no impact on the overall introduction of the new regime.

Ratification of the UPCA

Both Austria and France have now ratified the UPCA (on 7 August 2013 and 14 March 2014 respectively). A further 10 European Union Member States (specifically including Germany and the UK) must ratify the UPCA for the unitary patent to take effect.

In the UK, draft legislation authorising ratification of the UPCA has been included in the Intellectual Property Bill. The next stage will be for the Bill to receive Royal Assent, following which the UK may ratify the UPCA (although ratification is not expected until 2015 at the earliest).

In Belgium, the Belgian Chamber of Representatives has voted to adopt the law authorising Belgium to ratify the UPCA. Ratification is expected before elections on 24 May 2014.

Referendum in Denmark concerning ratification

There will be a Danish referendum on 25 May 2014 on whether or not Denmark should ratify the UPCA (after the Danish government recently failed to secure the necessary majority for ratification).


On 18 March 2014, the fifth meeting of the Preparatory Committee for the Unified Patent Court agreed that the court will not be operational until the end of 2015 at the earliest.

Divisions and Judges

Sweden, Lithuania, Latvia and Estonia have agreed on the creation of a regional division of the Unified Patent Court (UPC). This is the first agreement by a group of Member States who are signatories to the UPCA to set up a regional division; there is expected to be at least one more, for the Benelux countries (ie., Belgium, Netherlands and Luxembourg).

A dedicated training centre for judges for the Unified Patent Court was officially opened on 13 March 2014 in Budapest.

See here for latest news.

Supplementary Documents

See supplementary documents for further information on:

  • A short introduction to the Unitary Patent and the Unified Patent Court
  • The role of the EPO and financial provisions
  • The Unified Patent Court
  • Situations where the permanent long term provisions will not apply (including transitional provisions and opt-out)
  • How valuable will the new regime be to your business
  • Developments since signature of the Unified Patent Court Agreement
  • Translation and language arrangements
  • The 'Unitary Patent'

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.