The signing of the Unified Patent Court (UPC) Agreement on 19 February 2013 heralded a radical change to the system of litigating patents in Europe.
When ratified by 13 signatory countries, including France, Germany and the UK, the UPC will come into force. At the same time a new form of EU patent known as the Unitary Patent, will become available.The signing of the Unified Patent Court (UPC) Agreement on 19 February 2013 heralded a radical change to the system of litigating patents in Europe.
The Unitary Patent
A single Unitary Patent will provide its holder with exclusivity protection in the whole of the EU bloc, with the exception of Italy and Spain.
But there is a commensurate risk – if a Unitary Patent is revoked in proceedings in the UPC because it is found to be invalid, its protection will be lost across the whole of Europe.
For those who would prefer patent protection in one or more European countries of their choice, the existing system of European patents and national patents – both of which protect the chosen national territories only – will continue to be available.
As well as the power to revoke Unitary Patents across Europe – in addition to European patents that have not ‘opted-out’ from the UPC’s jurisdiction – the UPC will be able to issue pan-European injunctions.
The UPC therefore provides a single-forum alternative to litigating opted-out European patents and national patents country by country.
However, the complexity of the court’s structure is a potential weakness. The UPC will have local and regional divisions situated in various European countries, as well as a central division. The central division is located in Paris but has branches in London and Munich.
This structure results in complicated rules for allocating cases between these divisions.
A particular concern is that some infringement proceedings will be heard in a different division to revocation proceedings concerning the same patent.
However, it is hoped that the Court of Appeal, which will be situated in Luxembourg, will eventually bring harmonisation of substantive and procedural patent law across Europe.
By providing a single patent and a single European court in which to enforce it, these reforms are intended to make patenting and patent litigation more affordable. Their intention is also to harmonise substantive patent law and simplify patent litigation.
It remains to be seen whether these objectives will be met. The answer will be revealed only after the UPC and Unitary Patent become a reality, which is currently anticipated to happen some time in 2015 or 2016.
Paul England is a professional support lawyer at Taylor Wessing