The biggest game-changer in European patent law history
Contrary to the status quo in Europe, where patents must be enforced and invalidated in each jurisdiction separately, under the new system European patents may be granted with unitary effect and so will be enforceable across Europe with just one action before the UPC. All decisions taken by the UPC, including injunctions, damages and decisions on the validity of a patent (whether UP or a traditional European bundle patent) will have pan-European effect. This will put almost the entire single European market with a population of some 400 million people at stake in UP litigation.
The UPC will have jurisdiction not only over the new unitary patents, but also for all existing and future European bundle patents, EP patent applications and supplementary protection certificates (SPCs) from its first day of operation. Thus, unless a holder of existing European patents decides to "opt-out" of the new system (see here), those patents will be subject to the UPC and its new procedural rules. The new system provides unprecedented opportunities, but it is complicated and comes with a number of pitfalls which could bring unpleasant surprises to those caught unprepared. Potential users of the new system need to educate themselves in time before the UPC is up and running in order to make smart choices, to avoid being caught off guard and to take advantage of the new possibilities.
We at DLA Piper believe that we are uniquely positioned to help you navigate these uncharted waters. Our dedicated cross-border team of experienced patent litigation lawyers is based in all major European jurisdictions and has the experience and the resources to provide the advice and guidance for you to take full advantage of the new system's many options. This site is DLA Piper's hub for all information relating to this crucial patent reform. It provides information on the new unitary patent, sets out the structure of the upcoming Unified Patent Court and keeps you up to date with the latest news and developments. For any further information, please get in touch with Dr. Markus Gampp or any member of our UPC team.
Read the latest news on the Unitary Patent System:
April 25, 2023
Presidium of the Unified Patent Court
On 25 April 2023, the Unified Patent Court announced the decision of the Presidium on the presiding judges for the Central, Local, and Regional Divisions, and for the corresponding judicial panels. The full decision, including the names of the judges, can be found here and will enter into force on 1 June 2023, the official start date of the UPC.
February 17, 2023
Deposition of UPC ratification instrument by Germany - UPC to start on 1 June 2023
Today, Germany deposited its instrument of ratification of the Agreement on a Unified Patent Court (UPC). With this deposition, Germany enabled the Agreement's entry into force. So far, Germany had not deposited its ratification instrument and acted as a "gate keeper" to ensure sufficient time for the necessary preparations for the launch of the UPC. With the deposition now, Germany has given the starting signal not only for the UPC but also for the Sunrise Period which will start on 1 March 2023. On 1 June 2023, the Unified Patent Court will take up its work and decide with direct effect on patent disputes of an initial 17 states (Germany, France, Belgium, Bulgaria, Denmark, Estonia, Finland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Austria, Portugal, Sweden, Slovenia).
December 7, 2022
Sunset period postponed
The start of the Sunset Period has been postponed for two months - it will nowstart on 1 March 2023followed by the entry into the force of the UPCAon 1 June 2023. The additional time is intended to allow future users to prepare themselves for the strong authentication which will be required to access the Case Management System (CMS) and to sign documents. Users will need to equip themselves with both a client authentication (hard device) and a qualified electronic signature. )
January 19, 2022
UPC: final preparations begin at last
On January 19, 2022, the Provisional Application Period (PAP) began when Austria became the 13th Member State to ratify the Agreement on a Unified Patent Court (UPCA). This triggered the protocol coming into force and means that the final preparations for the Unified Patent Court (UPC) can at last begin, including the appointment of Judges, the establishment of the registry, implementation of the computer system and finalization of the Rules of Procedure. According to the UPC Preparatory Committee, the PAP will last for at least 8 months.
One of the big issues still to be resolved is the location of that part of the central division which was to be located in London. Milan and the Hague have been raised as possible alternative locations. Until agreed, the existing seats of the central division in Paris and Munich will deal with all the central division cases.
EPO Select Committee on unitary patent
On January 19, 2022, the European Patent Office reported that the Select Committee of the EU Member States participating in the enhanced cooperation on Unitary Patent Protection (the Committee) had re-elected Jérôme Debrulle (BE) as its Chairperson and Simona Marzetti (IT) as Deputy Chairperson, for a renewable three-year term from March 2022. The Committee also decided to admit the United Kingdom as an observer.
The Committee has agreed its work programme for 2022. Certain amendments to Rules 2 (distribution of fees between Member States) and 16 (removal of inventor data and a new entry on the residence or principal place of business at the time of filing) were approved. Two transitional arrangements to support users in the early uptake of the Unitary Patent were also presented. These cover early requests for unitary effect and an option to request a delay in issuing the decision to grant a European patent. Both initiatives were welcomed by the Committee. The EPO also announced its Unitary Patent awareness-raising campaign. The next meeting will take place on 23 March 2022.
December 22, 2021
Early applications for unitary patents
On December 22, 2021, the EPO announced that to facilitate the introduction of the unitary patent system it will start to accept requests for unitary effect once Germany deposits its instrument of ratification of the Agreement on a Unified Patent Court (UPCA). This will be 3 or 4 months before the UPCA comes into force. Such early requests for unitary effect may only be filed for European patent applications for which a communication under Rule 71(3) EPC (informing the applicant of the intention to grant) has been despatched and unitary effect will only be registered by the EPO for any European patent granted on or after the date of application of Regulation (EU) No 1257/20 setting up the unitary patent. The date for requests will be announced on the EPO website in due course.
October 15, 2021
Slovenia ratifies PAP- Protocol and the UPCA
On October 15, 2021, Slovenia became the latest member state to deposit its instrument of ratification for the PAP-Protocol and the UPCA itself. This means that only one more ratification is required for the Provisional Application Period (or PAP) to begin and for the court to start its final preparations. These will include the appointment of Judges, the establishment of the registry, implementation of the computer system and finalization of the Rules of Procedure.
September 27, 2021
Germany ratifies PAP-Protocol
On September 27, 2021, Germany deposited its instrument of ratification for the Protocol on the Provisional Application of the UPC Agreement (the PAP-Protocol). The German law for the ratification of the UPCA and its Protocols was signed in the summer after the FCC rejected a further constitutional complaint allowing Germany to proceed with ratification
German applications for preliminary injunction against UPCA fail
On June 23, the Federal Constitutional Court rejected two applications for a preliminary injunction directed against the Act of Approval that was adopted on 18 December 2020 for the purposes of ratifying the UPCA. The Court held that the constitutional complaints were inadmissible as the applicants failed to properly assert and substantiate the alleged violation of their rights. This order cleared the way for Germany to proceed with ratification.
December 18, 2020
Germany passes new UPCA legislation with necessary majority
On December 18, 2020, the German government passed new UPCA legislation meeting the constitutional requirements. (In February 2020 Germany’s ratification of the Agreement on a Unified Patent Court (UPCA) transferring sovereign powers to the UPC was held to be illegal as it had not been approved by the Bundestag with the required two-thirds majority. See press release dated March 20, 2020.)
July 20, 2020
UK withdraws from the UPC Agreement in light of Brexit
On July 20, 2020, the UK Government deposited its withdrawal notification of ratification of the Agreement on a Unified Patent Court and the Protocol on Privileges and Immunities of the Unified Patent Court (dated 23 April 2018), and its consent to be bound by the Protocol on the Provisional Application of the UPC Agreement (dated 6 July 2017). In a statement made to the House of Commons the UK Government said that participation in a court that applies EU law and is bound by the CJEU would be inconsistent with the UK Government’s aims of becoming an independent self-governing nation post Brexit.
March 20, 2020
German Constitutional Court declares German UPC ratification null and void
The German Federal Constitutional Court declared the legislation enabling Germany to ratify the Agreement on a Unified Patent Court null and void (see the press release here). The complaint brought against the legislation package in June 2017 prevented the German ratification process from completion, as the Constitutional Court asked the German Federal President to hold off on signing the respective bills into law pending the outcome of the constitutional challenge.
The court published its decision without having held a hearing on the matter. The primary reason for the annulment is the fact that the German parliament (Bundestag) did not approve the legislation with the required two-thirds majority. The court also discusses a number of other grounds related to more material aspects, but did not reach a decision on those, as the complaint was already successful based on the lack of appropriate parliamentary approval.
This decision comes only weeks after the UK government announced that the UK will not be seeking involvement in the UP/UPC system (see below). In light of that, the German Government will now need to decide how to proceed. A new ratification with the required two-thirds majority could overcome this formal ground. However, this may also present an opportunity to rethink the entire system, also considering how to resolve, inter alia, the issues presented by the UK's withdrawal first. It will undoubtedly at the very least cause further significant delay to the launch of the UP/UPC system.
February 27, 2020
UK Government declares withdrawal from UPC
The UK Government declared that the UK will withdraw from its participation in the new UP/UPC system in the wake of Brexit, despite its previous ratification of the respective legislation. A spokesperson stated: "I can confirm that the UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation." It is unclear how exactly the UK's withdrawal from the UPC Agreement will be executed, as there are no provisions in the agreement foreseeing how a Member State may rescind its earlier ratification and the corresponding declarations.
While the UK had previously ratified the Agreement, this withdrawal also presents a number of questions as to how the new system may operate without the UK's participation. Most importantly, the UK was to host one of the seats of the Central Division, which will now need to be relocated. The participating Member States will need to find a way to resolve this and other questions before bringing the new court into operation. Along with other questions raised by the UK Government's decision, this will likely be part of a political process, which is not likely to start before clarification is reached on the constitutional challenge brought against the German ratification legislation (see below).
April 26, 2018
UK ratifies the UPC Agreement
The UK Intellectual Property Office and the UK Minister for Intellectual Property have today confirmed that the UK has ratified the Unified Patent Court Agreement (UPCA). Please see the official announcement here. As the total number of 13 required ratifications has already been reached, this leaves only the required ratification by Germany as the final missing piece in the ratification process. Such ratification is however likely subject to the resolution of the constitutional challenge pending in Germany reported on earlier (please see below). The UK IPO's official communication also includes a paragraph, saying that "The unique nature of the proposed court means that the UK's future relationship with the Unified Patent Court will be subject to negotiation with European partners as we leave the EU." This hints at the fact that it is unclear whether the UK may remain a party to the UPC regime as a non-EU member after Brexit.
February 28, 2018
Luxemburg passes a law approving the ratification of the Protocol on Privileges and Immunities
The Luxembourgian Parliament (Chamber of Deputies) passed a law approving the Protocol on Privileges and Immunities of the Unified Patent Court on February 28 2018. The law is necessary in order for Luxembourg to be able to deposit its instrument of approval with the General Secretariat of the EU Council. Both the UPC's Court of Appeal and Registry will be situated in Luxembourg and therefore Luxembourg is one of the four member states that must ratify the Protocol before it can enter into force.
February 21, 2018
German Constitutional Court plans to hear the Complaint against UPC in 2018
The Federal Constitutional Court (Bundesverfassungsgericht) of Germany published a list of cases that are planned to be heard in 2018. This list includes the constitutional complaint against the legislation enabling Germany to ratify the Agreement on a Unified Patent Court. The pending complaint brought against the legislation enabling Germany to ratify the UPC Agreement stopped the German ratification process in June last year as the Constitutional Court asked the German Federal President to hold off on completing the ratification until it decides on the complaint. No specific hearing date has been scheduled yet.
February 14, 2018
France ratifies the Protocol on Privileges and Immunities
France has deposited its instrument of ratification of the Protocol on Privileges and Immunities of the Unified Patent Court with the EU Council. Please see the overview of all current ratifications of the Protocol here.
February 8, 2018
UK is ready to ratify the Protocol on Privileges and Immunities
Following the House of Parliament, now also the UK Privy Council approved the Unified Patent Court (Immunities and Privileges) Order which was the last legislation required to enable the UK to ratify the Protocol on Privileges and Immunities of the Unified Patent Court and the UPC Agreement. The UK is one of the four states that must ratify the Protocol in order for it to come into force, as a section of the Unified Patent Court's central division will be based in London. The other countries that must ratify the Protocol in order for it to enter into force are France, Luxembourg and Germany.
January 11, 2018
Latvian ratification of the UPC Agreement
Latvia deposited its instrument of ratification of the Unified Patent Court Agreement with the EU Council and is the 15th country to ratify the agreement. Please see the overview of all current ratifications here.
October 26, 2017
Extension of the Comment Period in the German Constitutional Complaint
The German Constitutional Court (BVerfG) asked three additional organisations for comments on the constitutional complaint. The BVerfG therefore extended the deadline for the submission of comments from the end of October to December 31, 2017. The next step is for the BVerfG to decide on the admissibility of the complaint, taking into account the comments received by third parties. This extension of the comment period results in further delays to the timetable of this case, where a decision at least on the admissibility can now be expected in early 2018.
October 25, 2017
Scotland ratifies the Protocol on Privileges and Immunities
The Scottish Parliament approved the draft Scottish Statutory Instrument on Privileges and Immunities (PPI) on October 25, 2017 after the Scottish Parliament´s Justice Committee recommendation. The PPI will confer devolved privileges and immunities to the UPC, its judges and other staff. The draft Statutory Instrument laid down before the English parliament in June is yet to be discussed in both chambers. The UK can only move towards the ratification of the Protocol on Privileges and Immunities (PPI) when these two orders will be passed in both the Scottish and the English parliament.
September 22, 2017
Report from the UPC Preparatory Committee
The Preparatory Committee notes good progress on the ratification of the UPC Agreement (UPCA) with 14 member states having deposited their instrument of ratification, as well as on the ratification of the Protocol on Provisional Application with close to the required 13 signatures. However, in view of the German Constitutional complaint causing delay to Germany's ratification, the Preparatory Committee finds it difficult to predict any timeline. Read more
September 12, 2017
Updates on the German Constitutional Complaint
In the case of the constitutional challenge brought against the UPC before the German Constitutional Court (BVerfG), the court invited several institutions to submit comments and observations by October 31, 2017. A spokesperson of the court declared that both chambers of the German parliament (Bundestag and Bundesrat), the Federal Government (the Federal Chancellery, the Federal Ministry of Justice and Consumer Protection, the Federal Ministry of the Interior), and all governments of the Federal States (Bundesländer) were invited to comment on the complaint. Further third party organizations such as the German Federal Bar Association, the German Lawyers' Association (DAV, Deutscher Anwaltverein) and the European Patent Lawyers' Association also received a request for comments. Given the time the BVerfG will need to evaluate the comments received from potentially up to 22 parties, a decision before the end of 2017 appears rather unlikely.
September 12, 2017
Bulgaria signed the Protocol on Provisional Application
Bulgaria signed the Protocol on Provisional Application of the UPC system on September 11, 2017. Please see the overview of all current signatories here
August 24, 2017
Lithuanian Ratification of the UPC
Lithuania is the 14th State to ratify the UPC by deposing its instrument of ratification with the Secretariat of the EU Council in Brussels.
August 15, 2017
Further details about the German Constitutional Complaint against the UPC
Further information about the grounds of the complaint brought against the UPC before the German Constitutional Court (BVerfG) have become publicly known. One point of criticism apparently relates to the parliamentary process, i.e. how the bills ratifying the UPC system were discussed and voted on by the German parliament. It is asserted that the UPC has been adopted by the German Parliament without fulfilling the requirement for a qualified majority under Art 23(1) sentence 3 in conjunction with Art. 79(2) of the German Constitution. Further attacks relate to the UPC system itself. The plaintiff alleges that the UPC suffers from democratic deficits and deficits in rule of law regarding the regulatory powers of the organs of the UPC. The status of the judges is also pointed at because of a supposed lack of independence and democratic legitimacy. Finally, the plaintiff raised a breach of the principle of openness towards European law, which would make the UPC irreconcilable with EU Law. The proceedings are still pending and neither a date for the decision nor for a hearing was provided yet.
August 1, 2017
Estonia is the 13th member state to ratify the Unitary Patent System
On August 1, 2017, Estonia ratified the Unitary Patent System. This is particularly noteworthy as Estonia is the 13th contracting member state to do so and the UPCA requires ratification by at least 13 contracting states in order to come into effect. However, amongst these states must include France, Germany and the UK, with the latter two yet to complete their ratification process.
July 18, 2017
Motion filed by the Hungarian Government to question the Constitutionality of the UPC Agreement
A motion with the Constitutional Court of Hungary was filed by the Minister of Justice, acting on behalf of the government. The Court´s opinion on the constitutionality of the UPC Package is therefore requested before ratifying the Agreement. Different from the Germann constitutional challenge however, this motion cannot delay entry into force of the unitary patent system, as Hungary is not one of the three member states which must ratify the Agreement.
July 14, 2017
Doubts about relocating the Pharmaceutical and Life Sciences Central Division of the UPC
Since Article 50 TUE was triggered by the UK Prime Minister on March 29, 2017 to start the negotiations to exit the EU, the London-based EU agency responsible for medicines (EMA) will be relocated as announced in June. Chief Negotiator of the Commission, Michel Barnier, now suggested doubts about London keeping the pharmaceuticals and life sciences part of the UPC central division of Europe's new unified patent court after Brexit.
June 26, 2017
The Protocol on Privileges and Immunities (PPI) placed in the UK Parliament
Secondary legislation in the form of an Order on Privileges and Immunities is presented before Parliament to implement the Protocol on Privileges and Immunities (PPI) of the UPC. A separate legislation will also be laid in due time before the Scottish Parliament. Read more
June 23, 2017
Slovenia ratified the Protocol on Privileges and Immunities (PPI) of the UPC
Slovenia ratified the Protocol on Privileges and Immunities (PPI) of the Unified Patent Court (UPC). This ratification is particularly significant since Slovenia will be hosting one of the two UPC Mediation and Arbitration Centres in the city capital of Ljubljana. In addition, Slovenia intends to host a local division of the UPC.
June 13, 2017
Federal Constitutional Court stopped ratification of the UPC Agreement in Germany
According to a press release of the German newspaper Frankfurter Allgemeine Zeitung (FAZ), the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) asked the German Federal President to hold off on completing the ratification of the UPC Agreement in Germany. The reason for this rather uncommon request is a pending constitutional complaint and a corresponding motion for accelerated proceedings brought by an individual person, whose identity is unknown at this time (case no. 2 BvR 739/17). According to the FAZ, the request to hold off on signing the respective bills into law was already submitted on April 3, 2017. So far, no official statement of the BVerfG or the Office of the Federal President (who is responsible for the outstanding ratification step) exists. Depending on how quickly the constitutional challenge can be resolved, these developments may well lead to a further delay of the start of the UPC.
June 7, 2017
Changes to timetable announced by the UPC Preparatory Committee
The Preparatory Committee announced that the start of the period of provisional application for the entry into force of the UPC Agreement in December 2017 cannot be maintained since the national procedures concerning the ratification of the Unitary Patent System are not finalised in Germany and in the UK. In particular the elections in the UK delayed the legislative process to reach a ratification in due time. Read more
June 2, 2017
Further steps in the German legislative process
The Protocol on Privileges and Immunities of the Unified Patent Court (PPI) law was passed before the German Bundesrat. The legislative process to implement the Unitary Patent System is now complete. The next step will be for the German President to sign into law the respective bills, so to complete the ratification and enable that the instrument of ratification be deposited.
May 15, 2017
The Protocol on Provisional Application (PPA) applies in Belgium from 15 May 2017
A declaration was issued in Belgium so that the Protocol on Provisional Application (PPA) applies from 15 May 2017. Nevertheless all the Articles listed in Article 1 of the UPC Agreement's Protocol on Provisional Application (PPA) will only come into force as soon as 13 states (including France, Germany and the UK) have ratified the Unitary Patent Package.
April 27, 2017
Protocol on Privileges and Immunities (PPI) approved by the German Bundestag
After enacting two of the necessary laws (out of three) to implement the European Patent System, Germany is moving forward to ratify the Unitary Patent System. The German Bundestag approved the draft law 18/11238 enabling ratification of the Protocol on Privileges and Immunities of the Unified Patent Court (PPI). This bill must still pass in front of the second chamber of the parliament, the Bundesrat, for a second reading in order to allow Germany to ratify the Unitary Patent Package.
April 22, 2017
Spain will not join the Unitary Patent System
The Minister de Guindos confirmed that Spain will not join the Unitary Patent System despite the motion adopted on March 7, 2017. The Minister affirms that: "Although Spain has always supported the creation of an EU Patent system, we cannot join this system, both because of the (…) linguistic regime and because of doubts as to the legal protection it offers."
April 10, 2017
Adoption of the 18th draft of the Rules of Procedure
The 18th draft of the Rules of Procedure, which is likely to be the final one, was adopted during the Committee Meeting of March 15, 2017. The Rules of Procedure were then published on April 10, 2017. Read more
March 25, 2017
Greece moves further towards Unitary Patent System ratification
Greek Law was amended to ratify the Protocol on Privileges and Immunities (PPI) of the UPC after a public consultation on draft legislation. The text mentions also a local division of the UPC to be hosted in Greece. Furthermore, the UPC Agreement's Protocol on Provisional Application was signed on March 23, 2017.
March 7, 2017
Spanish Parliament adopts a non-binding motion to join the UPC
An opposition party brought a vote before the Spanish Parliament (Congreso de los Diputados) for reconsidering Spain´s rejection of the Unitary Patent System. A non-binding motion was therefore adopted to take appropriate measures to join the UPC.
February 20, 2017
Provisional application of the Unitary Patent System in Italy
Italy signed the Protocol to the Agreement on a Unified Patent Court on provisional application (PPA). Please see the overview of all current signatories here.
February 10, 2017
Italy ratifies the Unitary Patent System
After the two chambers of Parliament approved the ratification bill of the Unitary Patent System in October 2016, Italy deposited its instrument of ratification with the EU council on February 10, 2017, making it the twelfth contracting member state to do so. Please see the overview of all current ratifications here.
January 16, 2017
UPC assumed to become operational in December 2017
The UPC Preparatory Committee is now working under the assumption that the Provisional Application Phase will start by the end of spring 2017, presumably in May, and that the Agreement on the Unified Patent Court (UPCA) can enter into force, allowing the Court to become operational in December 2017. Read more.
December 14, 2016
UK signs Protocol on Privileges and Immunities of the UPC
The UK signed the Protocol on Privileges and Immunities of the Unified Patent Court (PPI). Signing this protocol is essential for operating the London-based part of the Central Division and Local Division of the UPC.
December 9, 2016
Germany prepares for ratification of the UPC Agreement
A (new) draft of the legislation to authorize ratification of the UPC Agreement was submitted to the Bundesrat (Federal Council). This is a further required step in the legislative process, allowing Germany to ratify the UPC Agreement in due course.
November 28, 2016
UK signals green light to ratify UPC Agreement
On the occasion of the meeting of the EU's Competitiveness Council, the UK Intellectual Property Office and the UK Minister of State for Intellectual Property confirmed their intent to proceed with preparations to ratify the Unified Patent Court Agreement. They said that the UK will continue with preparations for ratification over the coming months and will be working with the Preparatory Committee to bring the UPC into operation as soon as possible. This announcement eliminates concerns that the UK may not ratify the UPC Agreement pursuant to the 'Brexit' vote earlier this year. Read the official press release
November 8, 2016
Milan formally selected for Italy's Local Division
The Italian authorities formally selected the location for the Local Division to be set up in Milan. Read more.
October 28, 2016
EPO Select Committee completes the legal preparation of the Unitary Patent
At its 20th meeting, the Committee unanimously approved the Administrative instructions under Article 7 of the Rules relating to the Distribution of Fees among the participating member states and noted that this completed the legal preparation of the Unitary Patent. Read more.
August 2, 2016
UK continues to attend and participate in UPC meetings
UK's Intellectual Property Office (IPO) states that the UK remains a Contracting Member State of the Unified Patent Court at present, that they will continue to attend and participate in UPC meetings in that capacity, and that there will be no immediate changes. Read more.
June 30, 2016
Technical implementation of the UPC continues
On its first meeting following the result of the UK referendum, the Preparatory Committee of the Unified Patent Court decided that work dedicated to the technical implementation should continue to progress as envisaged, in accordance with the mandate of the Committee. This would include the completion of the recruitment process which will close on 4 July 2016. Read more about the meeting and see also the separate statement from the Chairmen of the UPC Preparatory Committee and the EPO Select Committee.
June 24, 2016
The result of the UK referendum may significantly impact the UP/UPC project
On 23 June 2016, the UK electorate voted to leave the European Union in a so-called 'Brexit' referendum. This historic decision raises significant challenges in many ways, inter alia raising significant doubts whether the UP/UPC project can still be implemented as planned. For an initial examination of the potential impact of the UK's "Brexit" vote on a number of key areas please see here and more specifically on IP rights here. Please also make sure to check out a more detailed comment on the future of the UPC: Is the UPC Brexit-proof?
May 9, 2016
UPC Judicial Recruitment started
The recruitment of legally qualified and of technically qualified judges of the Unified Patent Court (Court of First Instance and Court of Appeal) has been launched with the publication of the vacancy notices in English, French, and German. The deadline for applications is 4 July 2016. Read more.
November 17, 2015
The EU countries decide how UP renewal fees will be distributed between them
Following the adoption of a "True Top 4" proposal for the Unitary Patent (UP) renewal fees on 24 June 2015 (see further below), the 26 UP countries have now agreed how those fees will be distributed between them. 50% of the renewal fees will be retained by the EPO, which will be examining and granting UPs. The remainder will be distributed between the participating countries, apparently based on a formula which takes into account GDP and the number of UP applications filed from that country (the precise formula has not been published at the time of writing). The distribution of renewal fees will be reviewed at least every 5 years, and may be modified if what happens in practice differs from the projected figures. See announcement here.
October 19, 2015
Rules of Procedure of the UPC confirmed
The Preparatory Committee has confirmed that it has adopted the 18th draft Rules of Procedure as the Rules of Procedure of the UPC (download here). However, some amendments will need to be made to the Rules once the Committee has decided the court fees, to accommodate the fee regime agreed.
July 3, 2015
Italy to join the enhanced cooperation, eventually
The rumors concerning the decision of the Italian government to join the enhanced cooperation on the Unitary Patent were actually correct. In a public event hosted by 'Centro Studi Grande Milano' on Monday Mr. Alessandro Gozi, member of the Parliament and undersecretary of the Prime Minister with the task to take care of the European affairs, confirmed that the Italian government formally asked to join the enhanced cooperation. No other formal initiative is required from the Italian side, so that Italy should be now counted among the States participating in the UP. This circumstance makes the recent 'True Top 4' decision on renewal fees even more attractive for the patentees. This development should pave the way for the Italian ratification of the UPC; in this connection it was anticipated that the local division of the UP would be located in Milan. It is reasonable to expect further developments in the very near future.
July 1, 2015
18th draft Rules of Procedure of the UPC available
The Preparatory Committee published the 18th draft of the Rules of Procedure (download here)
June 24, 2015
EPO adopts 'True Top 4' proposal for UP renewal fees
The Select Committee of the Administrative Council of the EPO endorsed the European Patent Office's "True Top 4" proposal for a set of uniform renewal fees applicable to the unitary patent. Read more
May 8, 2015
UPC Preparatory Committee publishes proposal for UPC court fees and recoverable costs
The Preparatory Committee's consultation document can be found here and includes the following proposals:
- Fees - (i) fixed and value-based fees for, inter alia, infringement actions, counterclaims and actions for declarations of infringement (€11,000 fixed fee plus value fee of up to €220,000); (ii) fixed fees only for revocation actions and counterclaims (up to €20,000); and (iii) fee reimbursement for early settlement or exemption from value-based fees for SMEs, universities and others
- Costs - Bands of recoverable costs capped relative to the value of the action, e.g. value of €500,000 - €1M: up to €150,000 costs recoverable, and value of €4-8M: up to €600,000 costs recoverable.
EPO publishes revised proposals for renewal fees for the unitary patent
The adjusted proposals for the level of renewal fees include: (i) 'True Top 4': a scale of fees based on the sum of the current renewal fees in the four countries (DE, FR. UK and NL) where European patents are most frequently validated; or (ii) 'True Top 5': a scale based on the top five such countries.
March 6, 2015
EPO President publishes initial proposals concerning renewal fees for the unitary patent
The President of the European Patent Office's proposals for the level of renewal fees for European patents with unitary effect can be found here.
February 17, 2015
Italy considers its future position on the Unitary Patent and the UPC
On 16 February 2015, the Italian Ministry of Economic Development submitted a formal call for comments, addressed to multiple stakeholders, about the following options for its future position regarding its participation in the Unitary Patent and the UPC:
- Option 1: Italy to join the Enhanced cooperation and to ratify the UPC Treaty
- Option 2: Italy remaining adverse to the Unitary Patent, but to ratify the UPC Treaty, or
- Option 3: Italy against both the Unitary Patent and the UPC Treaty.
The comments should be submitted by 20 February 2015. The Ministry communication did not disclose any background information; it is however reasonable to assume that the above options are presently under scrutiny by the government, and that a decision could be taken in the very near future.
Update as of March 4, 2015: The majority of the answers to the Italian Ministry of Economic Development call for comments on the UP/UPC package were favorable to the participation to the Enhanced Cooperation and to the ratification of the UPC. In a question time at the Parliament the Ministry confirmed that the matter is "a priority for the government" and that the economic consequences of the decision are currently under scrutiny "taking into account the position and interest of all the stakeholders". Among them the Italian Small and Medium Entities, worried about the costs and affordability of the system. In this context, the language appears to be still an issue due to the translation costs and limited reimbursement provided by the current (draft) regulations; the Ministry pointed out the need to further work on this.
January 20, 2015
Austria announces plans to establish local division
The Austrian Federal Ministry for Transport, Innovation and Technology announced a decision by the Austrian Council of Ministers to establish an Austrian local division of the UPC, which will be based in Vienna and hosted within the premises of the Austrian Patent Office. See the official announcement (in German) here.
December 18, 2014
UK IPO posts tender notice for procurement of UPC's IT system
The UK Intellectual Property Office posted a tender notice for the procurement of the IT system for the Unified Patent Court in a supplement to the Official Journal of the EU, which can be found here. It is titled "IT-2014-062 — Unified Patent Court (UPC), Case Management System, Hosting Services and Website Development". Setting up a unitary IT system to be accessed by all divisions of the UPC and used for electronic filing of documents is one of the most important steps to be completed before the UPC can become fully operational.
December 9, 2014
Malta completes ratification of UPC-Agreement
As the sixth signatory member state of the Agreement on a Unified Patent Court, Malta has now completed its ratification process by depositing its instrument of ratification with the General Secretariat of the Council of the European Union in Brussels. Further instruments of ratification have been deposited so far by Austria, Belgium, Denmark, France and Sweden.
November 26, 2014
Hearing on the 17th draft of the Rules of Procedure held in Trier
As announced by the Preparatory Committee earlier, a hearing on the 17th draft of the Rules of Procedure for the Unified Patent Court took place on November 26, 2014 at the Academy of European Law in Trier. More than 70 organizations which had participated in the written consultation were invited to the hearing as well as a group of experienced patent judges. The 17th draft of the Rules of Procedure (download here) contains in mark-up mode the amendments by the Expert Group as a result of the written consultation in red (16th draft) and those made by the Legal Group in blue. As the work is progressing towards the preparation of the final draft, the oral hearing focused on these changes.
November 18, 2014
Advocate General proposes CJEU should dismiss Spain's actions
Spain filed two actions against several aspects of the unitary patent system with the Court of Justice of the European Union (see here for more details). The CJEU dismissed the first challenge (Cases C-274/11 and C-295/11) on 16 April 2013. Now the Advocate General recommended that the second challenge (Cases C-146/13 and C-147/13), with which Spain is seeking annulment of the UPR and the UPTR, should also be dismissed. For more information, please see the CJEU's press release here. The CJEU's decision is expected for spring 2015.
November 4, 2014
Seventh meeting of the Preparatory Committee
As the Preparatory Committee reports here, "[a]t the seventh meeting (held in Brussels on 4 November 2014) the Member States reported on the national ratification processes. It does indeed look promising since many Member States reported that they hope to be able to ratify in the course of 2015. Oral updates were conducted on the different work streams. A specific point to note is the first tranche of training for candidate judges that will commence early in 2015 (this training will focus on those that applied for legally qualified judicial appointments). Those involved will be contacted separately. Much progress has been made in the IT working group and it is anticipated that a tender will be published before the end of this year. The chair of the legal framework group informed the Committee about the plans for the upcoming hearing on the Rules of Procedure taking place in Trier on 26 November. The Committee also had a first discussion on the draft rules for mediation and arbitration and were near conclusion on the draft rules for legal aid."
October 31, 2014
17th draft Rules of Procedure of the UPC available
The Preparatory Committee published the 17th draft of the Rules of Procedure (download here), along with an explanatory note (download here).
October 7, 2014
UPC e-Filing prototype available to test
The prototype e-filing / case management system is now available to test here. The prototype is being configured using an off-the-shelf product, based on UPC draft Rules of Procedure 13-28, allowing testers to file an infringement claim. Feedback from testers is being used over October and November 2014 to help the Preparatory Committee continue configuration in an iterative way and to then evaluate lessons to inform the procurement process.
September 16, 2014
Preparatory Committee publishes new roadmap
The Preparatory Committee announced that the Roadmap of its work programme has been updated with amendments to some of the key milestones. Download the new Roadmap here.
September 11, 2014
Letters issued to UPC Candidate Judges
Following a call of expression of interest in becoming a technical or legal judge of the Unified Patent Court, the Chairman of the Preparatory Committee now issued letters to suitable candidate judges. The first training activity is supposed to be taking place over the next few months, with individuals being contacted separately about the specific training programme.
July 8, 2014
Sixth meeting of the Preparatory Committee
As the Preparatory Committee reports here, "[t]he sixth meeting of the Preparatory Committee took place at the Finnish Permanent Representation to the European Union. The Committee had a wide variety of topics on the agenda and took what could be considered a milestone decision in which it approved a list of suitable candidate judges which has been prepared by the Committee's Advisory Panel. The Committee also adopted the Financial Regulation and had first discussions on the rules on legal aid, the rules of the Administrative Committee, the rules of the Budget Committee as well as on how to carry through the transition from the preparatory phase into the operational phase. It is encouraging to note that there are a substantial number of candidates that have been deemed eligible to become a judge in the Unified Patent Court. Those having expressed interest will in the course of the coming weeks receive a letter from the chair of the Committee informing them of the outcome in their individual case. We ask for understanding that due to the huge amount of submissions of expression of interest, some time is needed to prepare the Committee's responses. The Committee's approving of the list will also enable the training of some of the candidates to commence in the fall."
January 20, 2015
Austria announces plans to establish local division
The Austrian Federal Ministry for Transport, Innovation and Technology announced a decision by the Austrian Council of Ministers to establish an Austrian local division of the UPC, which will be based in Vienna and hosted within the premises of the Austrian Patent Office. See the official announcement (in German) here.
June 20, 2014
Denmark ratifies UPC Agreement
Denmark is the fifth participating member state to deposit its instrument of ratification of the UPC Agreement. It is allegedly planned to establish a local division in Copenhagen where the language of proceedings should be English and Danish.
June 13, 2014
Draft proposal and public consultation on the European Patent Litigation Certificate
Based on Art 48 (2) UPCA, which provides the opportunity for European patent attorneys to represent parties before the Unified Patent Court, the Legal Working Group of the Preparatory Committee has finalised its proposals on the draft European Patent Litigation Certificate (download here), allowing users to make comments and representations for 6 weeks. In addition, the draft proposals are accompanied by an Explanatory Memorandum (download here) which further details the background.
June 10, 2014
The UK takes further steps for the ratification of the UPC Agreement
Secondary legislation is drafted to give effect to the UPC Agreement and EU legislation on the unitary patent. Consultations on the draft are possible until September 2, 2014.
June 6, 2014
Belgium ratifies the UPC Agreement
Belgium fulfilled the last required step after ratification by depositing its instrument of ratification in Brussels with the General Secretariat of the Council of the European Union. There are plans to establish a local division in Brussels. The language of proceedings shall be English and the three official languages of Belgium (German, Dutch, French).
June 5, 2014
Sweden ratifies the UPC Agreement
After Sweden had already concluded an agreement with Lithuania, Estonia, Latvia earlier this year to establish a "Nordic-Baltic" regional division with its seat in Stockholm, Sweden now also ratified the UPC Agreement and deposited its instrument of ratification on June 5, 2014.
May 25, 2014
Danish people vote in favour of UPC Agreement
The Danish people are supporting the ratification of the UPC Agreement as they voted in a referendum in its favour (62,5%). It enables the Danish parliament to proceed with the ratification of the UPCA. Internal Market and Services Commissioner Michel Barnier said: "The approval of the Agreement on the Unified Patent Court by Danish voters gives a very positive signal to all signatories and should encourage them to ratify without any further delay. As a first specialised court common to the Member States in the patent litigation area, the Court will open a new chapter in the history of both the patent system and judicial cooperation in the EU.”
March 18, 2014
Fifth meeting of the Preparatory Committee takes place
The Preparatory Committee celebrated its one-year anniversary by arranging its fifth meeting. The meeting was held in the premises of the Swedish permanent representation in Brussels and a wide variety of topics were discussed. Inter alia, the Preparatory Committee revised its roadmap to express its new expectation that the UPC will not be operational until the end of 2015 at the earliest. See here for more details.
March 18, 2014
Germany plans to set up four local divisions
The German Federal Ministry of Justice announced that local divisions of the UPC will be established in the four most prominent locations for patent litigation in Germany: Dusseldorf, Munich, Mannheim and Hamburg. In addition to the local division, Munich will also be hosting a section of the central division. Germany is currently expected to be the only member state to set up more than one local division, making full use of the maximum of four possible local divisions.
March 14, 2014
France ratifies the UPC Agreement
France deposited its instrument of ratification of the UPC agreement on March 14, 2014 with the General Secretariat of the Council of the EU. France is the second state to ratify the agreement and is one of the three mandatory states (besides Germany and the UK) which must be amongst the 13 member states ratifying the agreement in order for it to enter into force.
March 13, 2014
Training Centre for UPC judges opened in Budapest
A dedicated Training Centre for the Unified Patent Court (UPC) was officially opened on March 13, 2014 in Budapest. The new Training Centre will function as a coordinating office for the training of judges and candidate judges of the new court system. Paul van Beukering, Chairman of the UPC Preparatory Committee, underlined the importance of highly qualified judges for the worldwide acceptance of the new court system. Please see here for more information.
March 4, 2014
Agreement on a Nordic-Baltic regional division
Sweden, Lithuania, Estonia and Latvia agreed on the establishment of a "Nordic-Baltic" regional division with the seat in Stockholm and English as the language of proceedings.
January 29, 2014
Interpretative note on the consequences of the application of Article 83 UPCA
Both within the Preparatory Committee as in public debates the question has arisen whether the Agreement on the Unified Patent Court will apply to patents that are opted out (see here on the opt-out mechanism). On January 29, 2014, the Preparatory Committee published an interpretative note to give its opinion on this matter.
December 18, 2013
Progress in 2013
In this note, the Preparatory Committee summarizes its progress made and some of the key milestones achieved in 2013.
Listen to the podcast
- Agreement on a Unified Patent Court (UPC Agreement)
- Regulation on the Unitary Patent (EU) No 1257/2012 (UPR)
Download the PDF
Read the text version
- Regulation on the language regime for the Unitary Patent (EU) No 1260/2012 (UPTR)
Download the PDF
Read the text version
- Decision of the Commission of the European Union on confirming the participation of Italy in the area of the creation of unitary patent protection
- Rules of Procedure (18th draft of 1 July 2015 adopted as the Rules of Procedure of the UPC on October 19, 2015 and last updated on March 15, 2017)
- Rules on Court Fees and Recoverable Costs (final version of February 25, 2016)
- Guidelines for the determination of Court fees and the ceiling of recoverable costs (draft version of February 26, 2016)
- Overview of the cost of a unitary patent (provided by the European Patent Office)
- Protocol to the Agreement on a Unified Patent Court on provisional application
- Protocol on Privileges and Immunities of the Unified Patent Court
- Website of the Preparatory Committee
- Roadmap of the Preparatory Committee’s work programme (as of December 2017)
- Status of Ratifications of the UPC Agreement
- Status of Ratifications of the Protocol on Provisional Application
- Status of Ratifications of the Protocol on Privileges and Immunities of the UPC
- CJEU's dismissal of the first Spanish challenge (Cases C-274/11 and C-295/11)
- CJEU's dismissals of the second Spanish challenge (Cases C-146/13 and C-147/13)
- UK Intellectual Property Office's tender notice for the procurement of the IT system for the UPC
- Regulation (EU) No 542/2014 amending Regulation (EU) No 1215/2012 as regards the rules to be applied with respect to the Unified Patent Court and the Benelux Court of Justice
- UPC bifurcation - Rules that reflect different traditions (March 2015)
- How to get UPC ready (May 2015)
See the most important milestones in the timeline for the Unitary Patent and UPC initiative, leading up to the signing of the Agreement on a Unified Patent Court in early 2013. For more recent developments after that point in time, please see our News section.
The basic concept that the free movement of goods should not be hindered by territorially limited intellectual property rights exists from the beginning of the European Economic Community (EEC).
The European patent system's founding treaty, the European Patent Convention (EPC), is signed on 5 October 1973 in Munich.
A first initiative for a Community Patent Convention fails primarily due to controversies between the EU Member States about jurisdiction and languages.
A second attempt to create a Community Patent is pursued and leads to a treaty signed by a number of states. The Treaty however never entered into force.
A draft European Patent Litigation Agreement is prepared for the purpose of patent litigation by contracting states of the European Patent Convention (several of whom were not EU Member States).
The European Commission decides that a Regulation could be more effective than a Treaty to overcome Member States' reluctance to subscribe to the System; the idea of relying on the EPO languages is devised.
Communication from the European Commission to the European Parliament about "Enhancing the patent system in Europe".
A renewed initiative proposes the creation of a new "European Patent with unitary effect" (or "Unitary Patent"). However, the 27 EU Member States fail to reach a unanimous agreement on the proposed trilingual regime (English, French and German) .
25 EU Member States decide to move forward on this project on the basis of the EU's "enhanced cooperation" procedure provided for in Art. 20 TEU.
The European Commission as well as the European Parliament approve of the plan to use the procedure of enhanced cooperation for the creation of a unitary patent in early 2011 and the EU Council authorizes the enhanced cooperation on 10 March 2011 (decision 2011/167/EU). On 13 April 2011 the Commission adopts a proposal for a Council Regulation implementing enhanced cooperation.
Spain and Italy strongly oppose these proposals and file complaints with the Court of Justice of the European Union (Cases C-274/11 and C-295/11). Spain, supported by Italy, seeks annulment of the Council Decision 2011/167/EU authorizing the use of the enhanced cooperation procedure to create the unitary patent. The CJEU eventually dismisses this first challenge on 16 April 2013. With a second action Spain then seeks the annulment of the UPR and the UPTR (Cases C-146/13 and C-147/13) but these claims are eventually also dismissed by the CJEU on 5 May 2015. For further information on these challenges, please see the judgments in our Resources section.
During the European Council of 28–29 June 2012, agreement is reached on the provisions between the 25 EU Member States and the necessary EU legislation is approved by the European Parliament on 11 December 2012. On 17 December 2012, the Regulation (EU) No 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection and the Regulation (EU) No 1260/2012 on the applicable translation arrangements are adopted by 25 EU Member States. In 2015, Italy decides to also participate in the enhanced cooperation.
The enhanced cooperation measures enter into force in January 2013, and will apply to a participating Member State in the enhanced cooperation from the date when the related Agreement on a Unified Patent Court (UPCA) enters into force for the state. On 19 February 2013, the UPCA is signed by 24 EU Member States (without Spain and Poland), while Bulgaria signs as the 25th participating EU Member State on 5 March 2013. So far also Croatia has not signed the UPCA after joining the European Union in July 2013.