In parallel with the "European patent with unitary effect", a single patent covering all participating European countries, a "Unified Patent Court " is set up to settle disputes involving European patents in these same countries. Counterfeiting, if recognized, may be sanctioned for all participating countries. Conversely, in the event of cancellation of the patent, it will be cancelled in all participating countries.
On 10 and 11 December 2012, the Competitiveness Council of the European Union, bringing together European Industry Ministers, then the European Parliament gave their agreement on the creation of a "European patent with unitary effect". An agreement on a Unified Patent Court was signed on 19 February 2013 by 24 member states of the European Union, thus completing the "patent package" for the implementation of the unitary patent.
Following a new decade of negotiation, the Unified Patent Court entered into force on 1 June 2023.
The previous system In the previous system, the proprietor of a European patent had to bring legal proceedings before the competent court of each Member State where their patent was validated. The "Brussels I" Regulation gives them the choice of bringing the dispute before the court of the defendant's domicile or before the court of the infringement place (i.e. the place of the damage).
The Unified Patent Court To remedy this, the Unified Patent Court (UPC) is established, whose decisions are applicable throughout the territory of the signatory states of the agreement on a Unified Patent Court.
This new supranational court allows proprietors of European patents to invoke their patents, and third parties to obtain revocation of patents, in all participating states.
Jurisdiction of the Unified Court. This court has jurisdiction to settle disputes relating to:
- European patents with unitary effect (unitary European patents);
- supplementary protection certificates (SPCs) based on a unitary European patent or a European patent;
- European patents;
- applications for unitary patents or European patents.
The jurisdiction of the Unified Court is exclusive.
In case of invalidity, the patent will be cancelled in all countries participating in the UPC.
However, the Agreement provides for a transitional period during which national courts will also remain competent in matters of non-unitary European patents. The proprietor of a European patent may exclude, by a declaration of derogation, the jurisdiction of the Unified Court for their non-unitary patent ("opt-out").
Finally, it should be noted that the Unified Court is not competent for the following actions:
- actions involving a national patent or a European patent for which the jurisdiction of the Unified Court has been excluded ("opt-out"),
- actions to claim ownership of the patent,
- actions relating to the remuneration of an employee's invention,
- contractual actions,
- related unfair competition actions.
Judgment in one year. The procedure must be conducted to normally allow for the final hearing on issues of infringement and validity at first instance to take place within one year.
Organization of the Court. The Unified Patent Court consists of a court of first instance, a court of appeal and a registry. The Court of First Instance has a central division (with a seat in Paris and two sections in Munich and Milan) as well as several local and regional divisions in the participating states. The Court of Appeal shall have its seat in Luxembourg.
Distribution of competence in divisions. Local divisions may be chosen by the plaintiff based on the location of the damage or the domicile of a defendant.
For cases brought before the Central Division, the distribution of cases will depend on their position in the International Technical Classification:
- Milan will be competent for the basic necessities of life;
- Munich is mainly mechanical, but also chemical and metallurgy;
- Finally, Paris deals with other matters, i.e. industrial techniques, transport, textiles, paper, construction, physics and electricity (including optics, electronics and telecoms). It should also decide on supplementary protection certificates.
The Central Division has exclusive jurisdiction over applications for the main invalidity of patents and applications for declarations of non-infringement. However, the local divisions are competent to rule on an application for nullity by counterclaim.
If a party submits an application for a declaration of non-infringement to a central division, the patent proprietor has three months to submit an infringement application to a local division and the central division will then be obliged to stay the proceedings. The patent owner can thus choose the local division that suits him best and prevent the infringer from "torpedoing" his choice by initiating the first trial before the central division.
A local division seized of an infringement claim may, in the face of a counterclaim for invalidity:
- decide on all applications;
- refer the application for revocation of the patent to the central division and stay the decision on the infringement;
- return the entire file to the central division.
Language. The language used for the trial is:
- with local divisions, the country where the division is located and possibly any other accepted language (usually English);
- with the central division, the language of the patent grant procedure, bearing in mind that 75% of European patents are filed in English, 20% in German and 5% in French.
Probationary and interim measures. The unified court can take probationary measures (similar to the French counterfeit seizure) and prohibition measures.
Exclusion of certain States. Some states have refused to participate in the system:
- Spain has excluded itself from the whole system;
- Poland has acceded to the unitary patent but not to the agreement on the unified court;
- Croatia has not yet acceded to the unitary patent or the agreement on the unified court, but could do so soon.