Unified Patent Court / Five things you need to know about the legal system

Five things you need to know about the legal system

1. The Unitary Patent
The Unitary Patent is not a new type of patent right but rather a modification of the existing European patent, traditionally regarded as a "bundle" of national rights. When the Unified Patent package comes into effect, the patentee will have the option replacing a significant part of that bundle with the Unitary Patent: a single, unitary, patent right that is valid in all participating member states. The costly and complex requirement of validating and maintaining national counterparts of the European bundle patent will be no more.  If the patentee does not apply for unitary effect, he will receive the traditional bundle of national rights.

The validity requirements for a Unitary Patent are the same as for a traditional European patent, and are governed by the substantive patent law of the EPC. The biggest changes are to be expected to be on the enforcement side, with the creation of the UPC as the transnational court for deciding patent matters in Europe.

2. The Unified Patent Court (UPC) is a new forum for all European patent litigation, including traditional European patents
A transnational unitary right requires a Court with transnational unitary jurisdiction. The UPC’s jurisdiction, however, is not limited to the new Unitary Patent but also extends to all existing and future traditional European patents, including all national counterparts. The decision of the UPC will always extend to all member states designated in the patent, provided that these member states ratified the UPC Agreement. This means that the UPC will issue pan-European injunctions and revocation decisions which affect all of the parts of the EP-bundle at once. During the transitional period (presently seven years) after the system comes into force, it is possible to remove traditional European patents from the jurisdiction of the UPC by opting out. By opting out, the risk of one-shot pan-European revocation is avoided, at the cost of giving up on efficient pan-European injunctions.

3. Forum shopping possibilities for the patentee
The UPC is a transnational institution, with branches in the various participating member states. The first instance level is formed by the Central Division courts in Paris, London and Munich, as well as various Local and Regional Division courts in the other member states. Appeals are heard in a central Court of Appeal in Luxemburg.

The forum at first instance is determined by the type of action. Most notably, pre-emptive actions for revocation or a declaration of non-infringement can only be brought before a Central Division, whereas infringement actions may be brought before any Local or Regional Division where the infringer resides or where the infringement takes place. Once proceedings are pending before a Local or Regional Division, a counterclaim for revocation may be brought before and heard by the same court. They may also be referred to the Central Division, with the infringement action being stayed.

The jurisdiction rules favour infringement actions over invalidity actions. Even if a central revocation action is already pending before a Central Division, the patentee may still institute infringement proceedings at a Local or Regional Division. In that situation, the Local or Regional Division may decide that it also wants to hear the validity side of the case. If it does, it usurps the jurisdiction of the Central Division.

This system provides the patentee with options to select a favourable venue for his case, even if proceedings were launched by the infringer. The alleged infringer is considerably more limited in his options.

4. Continental style of proceedings
Proceedings before the UPC are mainly based on the continental legal system. Proceedings are front-loaded, with the majority of the arguments set out in the written briefs. The oral hearing will be relatively short, and is envisaged to take not more than a single day. The court can appoint witness or expert hearings, but these will not play as central a role as in the Anglo-Saxon legal tradition.

5. Legal representation
All patent lawyers and patent attorneys authorized to practice before the national courts of their respective member states will also be admitted to practice before all divisions of the UPC. This includes both the Local, Regional, Central Divisions and the Court of Appeal. In selecting counsel for patent litigation, clients are no longer restricted by the countries in which litigation will take place, though knowledge of the "couleur locale" will remain important. A significant benefit of the new system is that it allows for clients and their counsel to build a single legal team with intimate and detailed knowledge of the product and patent portfolio, to be deployed where and when legal action is required.