With the Unitary Patent as the successor to the European patent, it has become significantly easier for companies to protect their innovations within Europe. Almost simultaneously with the entry into force of the Unitary Patent, the Unified Patent Court (UPC) was established in July 2023. With the Unified Patent Court, there is now, for the first time, a centralized court system for all disputes concerning Unitary Patents and European patents.
What is the Unified Patent Court?
The Unified Patent Court, in German: das Einheitliche Patentgericht (EPG), is an international court responsible for all issues relating to infringement and validity of Unitary Patents and European patents. The UPC was established in July 2023 as a common court system of 25 EU Member States that signed the international agreement establishing the UPC (UPC Agreement/EPG Agreement). Currently, 18 EU Member States are bound by the Unified Patent Court, whose main seat is located in Paris.
Origin and objectives of the UPC
The establishment of the Unified Patent Court is part of the so-called EU patent package, which also includes the Unitary Patent. The aim of this package of measures is to simplify patent law and patent-related rules within the European Union.
The corresponding international agreement had already been signed by the EU Member States in 2013. However, constitutional complaints in Germany and Brexit delayed the establishment of the UPC. It was not until July 2023, after a sufficient number of Member States had ratified the UPC Agreement, that the court began its work.
By centralizing patent disputes within the EU, proceedings are intended to become more efficient and cost-effective. In addition, the EU patent package aims to improve patent protection for companies within Europe and to strengthen Europe as a location for innovation.
Jurisdiction and scope of the Unified Patent Court
The EPG or UPC has jurisdiction over disputes concerning:
- European Unitary Patents
- supplementary protection certificates
- European patents granted after the entry into force of the EPG Agreement
- European patent applications that were pending when the EPG Agreement entered into force or that were filed after that date
The EPG does not have jurisdiction over patents in countries that have not ratified the EPG Agreement, or over patents from non-EU Member States. National patents also do not fall within the jurisdiction of the court.
Opt-out option for European patents
For a transitional period (sunrise period) of seven years after the entry into force of the Unified Patent Court, patent proprietors have the option of excluding their patent from the jurisdiction of the UPC. Through this so-called opt-out, the national courts of the individual EU countries remain competent for patent disputes. Companies can thereby prevent, for example, a central revocation action from attacking their patent in all participating EU countries.
Types of proceedings before the EPG
In connection with Unitary Patents and European patents, the following proceedings are conducted before the Unified Patent Court:
- infringement actions
- revocation actions
- actions for a declaration of non-infringement
- preliminary injunctions and protective measures
In addition, appeal proceedings are conducted before the Court of Appeal of the EPG, which has its seat in Luxembourg.
Structure and organization of the Unified Patent Court
The UPC comprises a Court of First Instance with its main seat in Paris, a Court of Appeal in Luxembourg, and a Registry, also located in Luxembourg. The Court of First Instance consists of:
- a central division (Central Division) in Paris with divisions in Milan (since 2024) and Munich
- up to four local divisions (Local Division) per Contracting Member State
- regional divisions (Regional Division) for two or more Contracting Member States, which may sit at different locations.
Composition of the UPC panels
A particular feature of the Unified Patent Court is that each panel is composed of technically qualified and legally qualified judges. This combination is intended to ensure that the often highly complex aspects of each patent dispute are assessed on a sound technical basis.
The distribution of judges in UPC panels is as follows:
- Court of First Instance
- Central Division: 2 legally qualified judges, 1 technically qualified judge selected according to the field of technology
- Local Division: 2 legally qualified judges from participating Member States, 1 legally qualified judge from another Member State, technically qualified judge optional
- Regional Division: 3 legally qualified judges from participating states, technically qualified judge optional
- Court of Appeal: 3 legally qualified judges, 2 technically qualified judges selected according to the respective field of technology
Advantages and challenges of the Unified Patent Court
With the Unitary Patent and the Unified Patent Court, patent proprietors have centralized instruments available to protect their innovations efficiently within the EU. Depending on the type of patent dispute and the complexity of the proceedings, however, the court system also presents challenges. We have summarized the advantages and potential disadvantages for you:
Unified Patent Court / Unified Patent Court
| Advantages | Challenges |
| Uniform enforcement: A decision of the UPC automatically applies in all participating states – parallel proceedings in several countries are no longer required. | Uniform revocation risk: If a Unitary Patent is revoked, it is lost in all participating states at the same time. |
| Cost efficiency: Uniform enforcement in centralized proceedings saves litigation costs. | Risk of high litigation costs: Intensively conducted proceedings before the UPC can become expensive, particularly in the case of appeals or preliminary injunction proceedings. |
| Time savings: Clear procedural rules and centralized proceedings can enable decisions to be issued more quickly. | Not all EU states are part of the UPC: In countries such as Spain, Poland and Croatia, separate proceedings must be conducted before national courts. |
| Technical expertise: The combination of legally and technically qualified judges enables a reliable assessment of complex technical matters. | Lack of established practice: The new rules and procedures of the UPC are unfamiliar to companies and lawyers in the initial phase and may lead to uncertainty. |
| Effective enforcement of rights: Centralized injunctions and damages claims have EU-wide effect against patent infringements. | Linguistic and cultural differences: The involvement of many different countries and languages may create practical challenges for UPC proceedings. |
RGTH: Protection for Unitary Patents and European patents
Do you need advice regarding your Unitary Patents, or would you like competent representation in disputes relating to a Unitary Patent? Our experienced patent attorneys support you with extensive technical and industry-specific expertise.
Disclaimer: The above information does not replace legal advice. No guarantee is given as to its accuracy or completeness.