The Unified Patent Court
What is the Unified Patent Court (UPC) and when will it open?
The UPC is a forum for central litigation of a unitary patent. It will also have jurisdiction over European patents that are not opted out of the UPC’s jurisdiction.
The creation of the UPC derives from the Agreement on a Unified Patent Court (the UPCA or UPC Agreement). This is an agreement between almost all of the EU member states. The only EU member states not currently party to the UPC Agreement are Croatia, Poland and Spain; although they have the option to join in the future.
The UPC started operating fully from 1 June 2023.
The consequences of UPC jurisdiction
The UPC is intended to replace national courts as the competent forum for hearing revocation and infringement actions and a number of other matters on European patents valid in the participating countries (all EU member states except for Croatia, Poland and Spain). For the participating countries, national courts will initially share jurisdiction with the UPC and then will ultimately only be able to hear infringement and revocation actions in relation to European Patents that have been opted out from the exclusive jurisdiction of the UPC.
For unitary patents, i.e. European patents for which a request for unitary effect has been made, it will not be possible to opt out of the jurisdiction of the UPC.
Patents that are granted by national authorities, for example the Netherlands Patent office, will still be litigated before national courts, such as the national courts of the Netherlands. The UPC has no jurisdiction over patents granted by national patent offices.
The UPC also has little or no jurisdiction over European patents that are validated in countries that are not party to the UPC agreement (or that have yet to ratify the UPC agreement). For example, a European patent that is validated in the UK, Spain or Norway can only be revoked by competent UK, Spanish or Norwegian authorities (unless centrally revoked via the EPO’s opposition procedure, which will remain unchanged).
The jurisdiction of the UPC extends to all European patents with unitary effect (also referred to as a Unitary Patent or “UP”). This means that, for a European patent from which a UP is created that has also been “validated” in any other country outside of the UP countries, including any EU member state yet to ratify the UPC agreement or, for example, the UK, the UPC will only have jurisdiction over the UP and not over the other validations.
The UPC will also have jurisdiction over SPCs based on European patents and unitary patents, although the exact provisions surrounding SPCs are yet to be finalised. We will be providing additional information on this topic when it becomes available.
Opting out of the UPC
There is a transitional period of at least seven years running from 1 June 2023 when the UPC opened. During this period it is possible for European patents, published European patent application and SPC owners (who do not want unitary effect) to opt out of the jurisdiction of the UPC. Therefore, for European patents that are opted out of the UPC, national courts, in the countries where the European patent is validated or designated, will continue to have jurisdiction. However, if you have chosen to have a unitary patent, it is not possible to opt out – the UPC will have exclusive jurisdiction on matters of revocation and infringement.
It will be necessary to opt out any already granted European patents and published pending European applications, if you do not want them to fall under the jurisdiction of the UPC. This will be possible while the transitional period is running.