The Unified Patent Court (UPC) will soon be operational. This pan-European patent court is expected to open its doors in the first quarter of 2023. From then on, it will also be possible to validate European patents upon grant as a "unitary patent" with protection for 17 participating EU countries at the same time.
Also from then on, the UPC will be the competent court for infringement and validity for all European patents. So, not only for unitary patents, but also for all European patents validated nationally in one or more of the UPC countries, even those European patents granted long ago. For unitary patents, there is no option: the UPC has exclusive jurisdiction for those patents. For European patents that have already been granted or are validated nationally after the start of the UPC, the patent holder has the choice to not let the UPC have jurisdiction (opt out) but the national courts instead.
Advantage or disadvantage?
Under the UPC, international litigation will be much easier, since an infringement or nullity case will be conducted in one court for all participating countries at the same time. Compared to the current system, this can be an advantage or a disadvantage. After all, the advantage of centralized enforcement for 17 countries at once also carries the risk of centralized patent revocation. In addition, the goal of the UPC is to expeditiously handle patent litigation. Each party has two to three rounds of written submissions. Nevertheless, the rules of procedure for infringement cases before the UPC aim to complete the written rounds in nine months. For nullity cases, the written rounds themselves could be completed in as little as six months. This is faster than in almost all European countries. To achieve such rapid treatment, the UPC's procedural rules indicate a tight regime of short deadlines.
A party accused of patent infringement has three months to formulate why there is no infringement. If the defense also wants to argue that the asserted patent is invalid, such a counter-attack must be worked out in the same three months. Against a nullity attack - either directly in a nullity case or as a counterclaim in an infringement case - the defendant has only two months to formulate a defense, including any proposed changes to the patent.
How to prepare yourself for the UPC
Such short deadlines are not insurmountable - and do not impede
the benefits of the UPC - but they can demand a great deal from the
parties, both plaintiff and defendant as well as their litigation
teams. Good preparation can prevent surprises. If you as a patent
owner suspect that a competitor might want to file an infringement
suit, you can already preemptively investigate the validity of the
competitor's patent and formulate possible counterattacks. If
you fear that a competitor might want to file
a nullity suit against one of your patents, you can already preemptively consider possible defenses or fallback positions. If you are the plaintiff in an infringement case and expect a counterclaim to invalidate the patent, you can prepare for this as well. Proper preparation can significantly relieve the pressure of short deadlines during litigation.
Read our Dossier 'A new European Patent System'
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