Overview of the UPC
Principle
In parallel with the unitary effect of patents, certain EU Member States decided to create a « Unified Patent Court » (or UPC) to centralize patent litigation at the European level.
This decision was formalized in the « Agreement on a Unified Patent Court » or UPCA, signed in February 2013.
Why the UPC?
Prior to the UPC, the national courts of these States were solely competent to rule on disputes relating to infringement and validity of European patents (or at least the respective national parts of European patents).
As a result, it was entirely possible to have divergent decisions within the European Union:
- A French court invalidates the French part of a European patent; while an English court considers that the English part of the same European patent is valid.
From a logical standpoint, this is rather unsettling.
The « Agreement on a Unified Patent Court » seeks to avoid this issue by establishing a specialized court with exclusive jurisdiction to settle disputes related to:
- European patents, and European patents with unitary effect (or unitary patents).
Entry into Force of the UPC
The UPC Agreement was signed on 19 February 2013 by 25 EU Member States.
However, this does not mean that it has yet entered into force (see Article 89 of the Agreement on a Unified Patent Court).
This agreement must be ratified by at least thirteen states, including the three states in which the highest number of European patents were in force in 2012 (see the Agreement on a Unified Patent Court), namely:
- Germany,
- France, and
- the United Kingdom (as long as there is no Brexit – otherwise it will be Italy).
The agreement will thus enter into force on the first day of the fourth month following the later of the following events:
- the deposit of the thirteenth instrument of ratification (see below); the amendment of EU Regulation 2012/1215 to include an exception regarding the exclusive jurisdiction of national courts in patent matters (see Article 24.3 of EU Regulation 2012/1215).
Wait and see…