The Unified Patent Court (UPC) is a common supranational patent court of 18 member states of the European Union,Agreement on a Unified Patent Court, Article 84(1): "This Agreement shall be open for signature by any Member State on 19 February 2013."; Article 84(4): "This Agreement shall be open to accession by any Member State."; and Article 2(b): "Member State" means a Member State of the European Union." which opened on 1 June 2023. It hears cases regarding infringement and revocation proceedings of European patents (regular European patents unless they were opted out and unitary patents). A single court ruling is directly applicable in the member states that have ratified the UPC Agreement (UPCA).
The UPCA is the legal basis for the court. It was signed as an intergovernmental treaty in February 2013 by 25 states, all then-EU member states except Spain, Poland and Croatia. The UPC entered into force after meeting three predefined conditions on 1 June 2023. Provisional application of the UPC Agreement was triggered on 19 January 2022 to enable preparation for the proper functioning of the court after entry into force. While the United Kingdom originally ratified the agreement, it withdrew from the UPC in 2020, following Brexit.
The UPC comprises a Court of First Instance, a Court of Appeal in Luxembourg, an Arbitration and Mediation Center and a common Registry. The Court of First Instance consists of a central division in Paris (with thematic sections in Munich and, since 1 July 2024, Milan), along with 13 local and one regional divisions. Before the central division, the language of procedure is English, French or German, while English in combination with a local language is the language of procedure before the local divisions.
Since the entry into force of the UPCA, it is also possible to request unitary effect for a European patent, which then applies in all countries where the UPCA was in force upon grant of the European patent. Appeal against decisions of the European Patent Office (EPO) regarding the grant of unitary effect is also possible at the UPC.
Background European patents are granted by the European Patent Office under the 1973 European Patent Convention (EPC). As of October 2022, 39 countries, including all countries of the European Union, are parties to the EPC. After grant, a European patent essentially becomes "a bundle of national patents" (subject, in some countries, to translation requirements in an official language of that country) in all countries separately, after which renewal fees are also due in all countries where the patent applies. Infringement proceedings in one country have essentially no effect in others, which sometimes leads to parallel litigation regarding the same European patent in different countries, with the possibility of having different outcomes out of these national court proceedings. This fragmented situation has been seen as an impediment to the establishment of an internal market within the European Union.UPCA, first recital.
To reduce translation and litigation costs, the European Union has passed legislation regarding European patents with unitary effect. The European Parliament approved the proposed regulation on 11 December 2012 and they entered into force in January 2013. As Spain and Italy objected to the translation requirements, which featured only the three European Patent Convention languages of English, German and French, they did not originally participate in the regulation, which were thus organized as an enhanced cooperation mechanism between member states, but Italy subsequently joined. Registration of unitary effect is to be organised by the European Patent Office and requires less translations and a single renewal fee for the whole territory. The unitary patent coexists with "regular" European patents.
Unitary patent protection, however, also requires a uniform patent court litigation system. That is provided for with the Unified Patent Court, which is constituted with the Agreement on a Unified Patent Court, signed on 19 February 2013 and which can handle cases related to European patents with and without unitary effect. The Agreement also incorporates many of the provisions of the proposed European Patent Litigation Agreement. The unitary patent provisions apply since the Agreement on a Unified Patent Court entered into force on June 1, 2023.
Locations
Court of First Instance The Court of First Instance has a central division with its seat in Paris, and thematic sections in Munich (mechanical engineering cases) and Milan. The distribution of cases within the central division is set out in Annex II of the UPCA, which forms an integral part of the Agreement.Art. 7(2), second sentence, UPCA While formally scheduled to hold a thematic section focusing on chemistry cases, including pharmaceuticals, London does not host a section following Brexit with the other branches of the central division temporarily taking over those cases. A change to the UPC Agreement entered into force on 1 July 2024 to accommodate the replacement of London with Milan as thematic section, while moving part of the expected case load to Munich and Paris.
Next to the central division, contracting states are free to set up local or regional divisions up to a maximum number depending on case load. The characteristics of the divisions and their territorial jurisdiction is shown below:
Type State(s) concerned Location Language(s) Number of local judges Central All Paris English, French, German Central (Section) All Milan English, French, German Central (Section) All Munich English, French, German Regional Estonia, Latvia, Lithuania, Sweden(Nordic-Baltic division) Stockholm (mainly) English 2 Local Austria Vienna German and English 1 Local Belgium Brussels Dutch, English#, French, German 1 Local Denmark Copenhagen Danish, English 1 Local France Paris French, English# 2 Local Finland Helsinki English, Finnish, Swedish 1 Local Germany Düsseldorf German, English# 4 Local Germany Hamburg German, English# 2 Local Germany Mannheim German, English# 3 Local Germany Munich German, English# 5 Local Italy Milan Italian, English# 2 Local Netherlands The Hague Dutch and English 3 Local Portugal Lisbon Portuguese and English 1 Local Slovenia Ljubljana Slovenian and English 1 #Judge-rapporteur may decide to use a national language for oral proceedings and/or the decision
Of the countries that ratified, Bulgaria, Luxembourg, Malta and Romania are not part of a local or regional division, and actions that could normally be brought before the local division of those countries, can be brought before the Central division.
Court of Appeal The court of Appeal is located in Luxembourg and also serves as the registry.
Other activities Training of judges takes place in Budapest,Art. 19(1), second sentence, UPCA: "The facilities for [the training framework for judges] shall be situated in Budapest." and Lisbon and Ljubljana host the seats of a patent mediation and arbitration centre.Art. 35(1) UPCA: "A patent mediation and arbitration centre ("the Centre") is hereby established. It shall have its seats in Ljubljana and Lisbon." The training centre for judges and candidate judges was officially opened on 13 March 2014 in Budapest.
Operation Composition of panels of judges The system includes both legally qualified and technically qualified judges, who would sit in panelsArt. 8 and 9 UPCA of three (Court of First Instance) or five (Court of Appeal) judges. Local divisions may ask (on their own or on the request of one of the parties) to have an extra technically-qualified judge added.Art. 8(2) UPCA
An overview of the composition of the panels of judges is as follows: Division type Court number of judges Nationals of the division Legally qualified judges Technically qualified judges Central First Instance 3 2A (3)A, B 1 (0)B Local (<50 cases/year) First Instance 3 (4)C 1 3 0 (1)C Local (>50 cases/year) First Instance 3 (4)C 2Art. 8(3), first sentence, UPCA 3 0 (1)C Regional First Instance 3 (4)C 2Art. 8(4), UPCA 3 0 (1)C Court of Appeal Appeal 5 (3)B 3A 2 (0)B A Of different nationalitiesArt. 8(6) and 9(1) UPCA B When dealing with actions under Article 32(1)(i) UPCA (actions concerning decisions of the EPO regarding the administration of the unitary patents),Art. 8(6), second sentence, and 9(2) UPCA or when the appeal is of a non-technical nature and no technical issues are at stake. C Upon request of one of the parties (or the panel)Art. 8(5) UPCA
Proceedings before the Court The proceedings before the Court comprise three consecutive parts: a written procedure, an interim procedure, and an oral procedure.Art. 52(1) UPCA
Appeal procedure Appeals against decisions of the Court of First Instance may be brought before the Court of Appeal "within two months of the date of the notification of the decision".Art. 73(1) UPCA In addition, appeals against certain orders (such as an order to produce evidence) issued by the Court of First Instance may also be brought before the Court of Appeal but within a shorter term, i.e. "15 calendar days of the notification of the order to the applicant".Art. 73(2) UPCA Appeals may be brought on both points of law and questions of facts.Art. 73(3) UPCA
The Court of Appeal may refer cases of exceptional importance to the full Court (i.e., the Court of Appeal sitting as a full Court), in order to ensure "unity and consistency of the case law of the Court".Art. 21(2) and 35(3) Statute of the UPC (Annex I to the UPCA)
Language of the proceedings Proceedings before a local or regional division generally take place in the local language of the local or regional division,Art. 49(1) UPCA in an official language of the EPO (English, German or French) if the local or regional division has designated such a language,Art. 49(2) UPCA or in the language in which the patent was granted (English, German or French) if the parties and the panel all agree.Art. 49(3) and (4) UPCA Before the central division, proceedings take place in the language in which the patent was granted (English, German or French).Art. 49(6) UPCA The proceedings before the Court of Appeal generally proceed in the language used before the Court of First Instance,Art. 50(1) UPCA or in the language in which the patent was granted (English, German or French) if the parties all agree.Art. 50(2) UPCA
Court fees To finance its budget, the UPC's own financial revenues notably comprise court fees,Art. 36(1) and (2), and 70 UPCA which the UPC's Administrative Committee adopts and periodically reviews.Art. 36(3) UPCA Some of the court fees are fixed fees, whereas others are constituted of a combination of a fixed fee and an additional value-based fee, i.e. a fee depending on the value of the action, which also referred to as the "value of the proceedings" or "value in dispute".
Recoverable costs The UPCA provides for that the unsuccessful party in UPC proceedings, i.e. the losing party, shall bear "[r]easonable and proportionate legal costs and other expenses incurred by the successful party", i.e. the winning party.Art. 69(1) UPCA. The recoverable costs are capped, and the applicable ceilings depend on the value of the action.
Governance Three committees have been established "to ensure the effective implementation and operation" of the Agreement:Art. 11 UPCA An Administrative Committee, composed of one representative of each Contracting Member StateArt. 12 UPCA Established upon provisional application, it held its inaugural meeting in February 2022. It is headed by Johannes Karcher (ad interim). A Budget Committee, also composed of one representative of each Contracting Member StateArt. 13 UPCA An Advisory Committee, comprising "patent judges and practitioners in patent law and patent litigation with the highest recognised competence",Art. 14(2) UPCA amongst others tasked with the advising on selection of judges.Art. 14(1) UPCA Willem Hoyng is its Chairman.