After being many years in the making, the European Union's Unified Patent Court ('UPC') – established by the Unified Patent Court Agreement ('UPCA') – officially launches on 1 June 2023. This significant step in patent enforcement, spanning – at present – 17 participating EU Member States, has been met with both high hopes and cautious optimism from the intellectual property community. While Cyprus is one of seven (7) EU Member States which have signed, but not yet ratified the UPCA, nonetheless, it is still prudent for businesses and patent holders to familiarise themselves with this upcoming patent enforcement regime.
What is the Unified Patent Court?
The UPC will have exclusive jurisdiction over the new European patents with unitary effect (unitary patents), as well as new and existing national patents obtained through validation of a European patent in participating countries. Due to its exclusive jurisdiction, it will be able to offer streamlined enforcement of patents by issuing infringement and validity decisions and to provide remedies such as injunctions and damages. Moreover, its enforcement will be effective across all participating EU Member States, thus, revolutionising patent enforcement across the Union.
The Implications and Opportunities of the UPC
One of the significant advantages offered by the UPC is its potential to reduce the need for parallel national court cases, therefore decreasing costs and complexity. Additionally, the use of a single Court could help reduce the likelihood of conflicting decisions from different national courts.
It is expected that the procedure for resolving disputes will be significantly faster. The UPC's goal will be to deliver its decisions in an expeditious manner; within six (6) weeks of the oral hearing in writing or alternatively, immediately after the closure of the oral hearing and provide its reasons at a later date.
Furthermore, a range of remedies will be available to patent owners, including the possibility for seeking pan-European injunctions.
The UPC also introduces new ways of challenging patents. At the moment, a European patent may only be opposed at the European Patent Office ('EPO') within nine (9) months of it being granted. In contrast, the process of revocation at the UPC is not tied to the aforementioned time limit or barred by a previous EPO opposition. Practically speaking, this means parties can now bring a revocation action against a European Patent that can no longer be opposed, or that they failed to successfully oppose at the EPO.
The Structure of the UPC
The UPC is composed of a Court of First Instance and a Court of Appeal, with provisions for a Patent Mediation and Arbitration Centre (shared by Lisbon and Ljubljana) to enable amicable settlements. With regard to the Court's composition, as per the UPC: "The body of judges is comprised of legally qualified judges and technically qualified judges with great expertise in patent litigation."
Court of First Instance – The Court of First Instance is decentralised with local or regional divisions in the Member States, while for certain cases, the central division will be hosted in Paris with a section in Munich.
Court of Appeal – The Court of Appeal will be based in Luxembourg and will preside over appeals against decisions of the Court of First Instance.
Opting Out of the UPC
For a transitional period of up to seven (7) years – extendable up to fourteen (14) years – owners of existing European patents or pending applications may "opt-out" of the UPC's jurisdiction. Naturally, unitary patents and patents already forming part of an action before the UPC cannot be opted out.
During the "sunrise period" between 1 March to 31 May 2023 patent holders were able to file opt-outs to exclude their patents from the UPC's exclusive jurisdiction before its commencement. Therefore, as of 1 June, while it will still be possible to exclude European patents from the UPC's jurisdiction for the transitional period, patents which have not yet been opted out by 31 May, will immediately be vulnerable to revocation actions before the UPC, commencing on 1 June.
Conclusion and Next Steps
It is advisable for companies holding European patents or operating in the EU to prepare for the new system by understanding the impact and opportunities emerging from the UPC's launch by reviewing their patent portfolio and strategising which – if any – patents or patent applications to opt out, bearing in mind the UPC's ability to extinguish patents across multiple jurisdictions, and the risk posed by potential infringement threats from competitors.
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.