Unified Patent Court Coming in 2023

Back in 2021, we wrote about how a Unitary EU Patent and EU Patent Court (UPC) might finally come into existence in 2022. According to the European Patent Office (EPO), the new system will offer users of the patent system a “cost-effective option for patent protection and dispute settlement across Europe.” Currently, according to the EPO,

national courts and authorities decide on the infringement and validity of European patents. In practice, this can lead to difficulties when a patent proprietor wishes to enforce a European patent in several countries or when a third party seeks the revocation of a European patent. Litigation in multiple countries is expensive and there is a risk of diverging decisions and a lack of legal certainty. Forum shopping is often inevitable, as parties seek to take advantage of differences between national courts and their procedures.

According to the EPO,

The UPC will provide a better framework for all parties involved in patent litigation in Europe. In particular, costs will be reduced as parties will not need to engage in parallel patent litigation in different member states. Diverging decisions from different national courts on infringement and validity of the same patent will cease as the UPC develops a truly European case law, thus enhancing legal certainty for all users.

More information about the new system is here. Although the new Unitary Patent Court won’t be launching in 2022, it does look like it will be in operation by April 1,2023. According to the EPO,

Unitary Patents will make it possible to get patent protection in up to 25 EU Member States by submitting a single request to the EPO, making the procedure simpler and more cost effective for applicants.

However,

Initially, Unitary Patents may not cover all participating Member States as some of them may not yet have ratified the UPC Agreement when it enters into force. Outstanding ratifications are likely to take place successively, so there may be different generations of Unitary Patents with different territorial coverage. The coverage of a given generation of Unitary Patents will stay the same for their entire lifetime, irrespective of any subsequent ratifications of the UPC Agreement after the date of registration of unitary effect. In other words, there will be no extension of the territorial coverage of Unitary Patents to other Member States which ratify the UPC Agreement after the registration of unitary effect by the EPO.

The UPC will have exclusive subject matter jurisdiction for actions for patent infringement, declaration of non-infringement, invalidity, provisional measures, and damages. The UPC’s court of appeal decisions will generally be final. For seven years from the date on which the UPC starts operating, patent owners will be able to opt-out of the exclusive jurisdiction of the UPC. It’s possible this term will be extended. Because the UPC’s decisions cover so many countries, its decisions may carry more weight than the decisions of national courts within the EU. This might lead to a reduction in the number of conflicting decisions, making the UPC something like an informal “Supreme Court” for patents in the EU.