Unified Patent Court

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Unified Patent Court
Unified Patent Court logo.png
Logo of the UPC
Formation To be established by treaty
Type Intergovernmental organization, court of several EU member states
Legal status Proposed
Headquarters Paris (court of first instance, central division)
Luxembourg (court of appeal and registry)
Website Unified Patent Court official website

The Unified Patent Court (UPC) is a proposed common patent court open for participation of all member states of the European Union. The Court will hear cases regarding infringement and revocation proceedings of European patents (including unitary patents) valid in the territories of the participating states, with a single court ruling being directly applicable throughout those territories. Requesting unitary patents upon the grant of certain European patents will be possible from the establishment of the UPC. The Court is to be established by the Agreement on a Unified Patent Court,[1] which was signed as an intergovernmental treaty in February 2013 by 25 states (all EU member states except Spain, Poland and Croatia). It will enter into force on the first day of the fourth month after meeting three predefined conditions. The UPC comprises a Court of First Instance, a Court of Appeal in Luxembourg, a Arbitration and Mediation Center and a common Registry. The Court of First Instance will consist of a central division in Paris (with thematic sections in London and Munich) along with several local and regional divisions.

Background[edit]

Further information: European patent and European Union patent

European patents are granted by the European Patent Office under the 1973 European Patent Convention. 38 countries (including all countries of the European Union) are parties to the Convention. After grant, a European patent essentially[notes 1] becomes "a bundle of national patents" (subject, in some countries,[notes 2] to translation requirements in an official language of that country) in all countries separately, after which renewal fees are also due in all countries. Infringement procedures in one country have essentially no effect in others, which sometimes leads to multiple lawsuits regarding the same European patent in different countries; sometimes leading to different results. To reduce translation and litigation costs, the European Union has passed legislation regarding European patents with unitary effect. Registration of unitary effect is to be organized by the European Patent Office and is expected to result in limited translation requirements and a single renewal fee for the whole territory. As Spain and Italy objected to the translation requirements (featuring only the European Patent Convention languages English, German and French), they are not participating in the regulation, which has thus been organized as an enhanced cooperation mechanism between member states. Unitary patent protection however also requires a uniform litigation system, provided for with the Unified Patent Court, constituted with the Agreement on a Unified Patent Court, signed on 19 February 2013. The Agreement also incorporates many of the provisions of the proposed European Patent Litigation Agreement.[2]

Locations[edit]

Unified Patent Court is located in European Union
Court
Court
Court
Court
Court
Court
Court
Court
Arbitration/Mediation
Arbitration/Mediation
Arbitration/Mediation
Arbitration/Mediation
Court of Appeal
Court of Appeal
Locations of the Court of First Instance (Central division, "Court"), the Court of Appeal and the Arbitration centre. In addition, several local and regional divisions of the Court of First Instance will be established.

The Court of First Instance would have a central division with its seat in Paris and thematic sections in London (focusing on chemistry cases, including pharmaceuticals, i.e. International Patent Classification (IPC) classification C, and human necessities, i.e. IPC classification A) and Munich (mechanical engineering cases, i.e. IPC classification F) each expected to take about 30% of the case load.[3][4] Furthermore, participating countries may set up a single or (if conditions regarding minimum case load are met) multiple local divisions of the court. Countries may also set up a regional division, serving as the local division of the group. The agreement does not define which countries would set up local or regional divisions.

The court of Appeal would be located in Luxembourg and would also serve as the registry.[5]

Training of judges would take place in Budapest, while Lisbon and Ljubljana would host Patent Arbitration and Mediation Centres.[5] The training centre for judges and candidate judges was officially opened on 13 March 2014 in Budapest.[6]

Court of First Instance[edit]

While the locations of the Central Court have been fixed in an Annex to the Agreement on a Unified Patent Court, Contracting States are free to set up local or regional divisions up to a maximum number. Not all locations of regional and local divisions have been announced. The characteristics of known divisions and their territorial jurisdiction is shown below:

Type State(s) concerned Location Language(s) Reference
Central All Paris English, French, German
Central (Section) All London English, French, German
Central (Section) All Munich English, French, German
Regional Estonia, Latvia, Lithuania, Sweden Stockholm English [7]
Local Belgium Brussels Dutch, English, French, German [8]
Local Denmark Copenhagen Danish, English [9]
Local France Paris [10]
Local Germany Düsseldorf [11]
Local Germany Hamburg [11]
Local Germany Mannheim [11]
Local Germany Munich [11]
Local Ireland [12]

Operation[edit]

The system would include both legally qualified and technically qualified judges, who would sit in a composition of three (Court of First Instance) or five (Court of Appeal) judges. Local divisions may request (on their own proposal or on the request of one of the parties) to have an extra technically qualified judge added.

An overview of the composition of the judges is shown below:

Division type Court number of judges Nationals of the division Legally qualified judges Technically qualified judges
Central First Instance 3A 2 1
Local (<50 cases/year) First Instance 3 (4)B 1 3 0 (1)B
Local (>50 cases/year) First Instance 3 (4)B 2 3 0 (1)B
Court of Appeal Appeal 5 3A 2

A Of different nationalities
B Upon request of one of the parties (or the panel)
Appeals may be brought before the Court of Appeal both on points of law or on the facts of the case. In case of questions regarding the interpretation of EU law, questions can be submitted to the European Court of Justice.

Proceedings would take in principle place in the local language of the division and in the language in which the patent was granted (English, German and French) in the central division. The court of appeal would proceed in the language used at the court of first instance.

Leadership[edit]

Three committees are to be constituted "to ensure effective operation and implementation" of the Agreement:[13]

  • Administrative committee
  • Budget committee
  • Advisory committee

A preparatory committee was established enabling entry into force when the required number of ratifications is reached. The committee is headed by Paul van Beukering and held its first meeting in March 2013.[2]

Sources of law and applicable law[edit]

Article 24 of the Agreement provides for the sources of law that judges should base their decisions on:

  • Union law, including the two regulations regarding the unitary patent
  • Agreement on a Unified Patent Court;
  • The European Patent Convention
  • Other international agreements applicable to patents and binding on all the Member States
  • National law

For the evaluation of which national law applies, regulations governing private international law -of which the Rome I and Rome II regulations form the corner stone- that are part of the law of the European Union as well as multilateral agreements are leading. As any court in the European Union, the decisions of the Court of Justice of the European Union are binding to the court.

Unified rules for infringement-exceptions[edit]

The Unified Patent Court agreement establishes several bases for the use of patented information without permission of the patent holder. These bases are applicable to European patents with and without unitary effect. The exceptions, given in Article 27, provide amongst others for:[14]

  • private and non-commercial use
  • use on airplanes and ships of third states, while temporarily in the territory of a participating member state
  • decompiling software covered by patented information
  • breeding of patented material

Competence[edit]

The patent court would have competence to hear cases regarding European Union patents (European patents for which "unitary effect" is registered with the European Patent Office) as well as for other European patents registered with countries for which the agreement is applicable.[5] In the latter case of European patents without unitary effect during a 7-year transition period, cases may also be brought before national courts and proprietors of patents may opt out from the use of the Unified Patent Court.[5] Decisions would be valid for the full territory of the state where the patent is valid. Cases may concern patent infringement, revocation, declarations of non-infringement and establishments of damages. The proceedings include a counterclaim from the opposed party. The competence includes supplementary protection certificates.[5]

Also the European Patent Office and countries would hold competence over some fields: Certain actions regarding validity/revocation (but not infringement) may also be brought before the European Patent Office as long as no proceedings have started in any country where the European patent is valid. Decisions by the European Patent Office are valid throughout the territory where the European patent is valid and may thus encompass 38 countries. Furthermore, countries may still grant their own national patents independently of the European Patent Office. Such patents are not litigated in the Unified Patent Court.

Legal basis[edit]

Agreement on a Unified Patent Court
{{{image_alt}}}
Signed February 19, 2013 (2013-02-19)[15]
Location Brussels, Belgium
Effective not in force
Condition amendment of the Brussels I Regulation and ratification by thirteen countries, including, France, Germany and the United Kingdom, but not before 1 January 2014
Signatories 25 EU member states (All except: Croatia, Poland and Spain)[15][16]
Ratifiers 6[15]
Depositary General Secretariat of the Council of the European Union
Languages English, German and French
Agreement on a Unified Patent Court at Wikisource

The Agreement on a Unified Patent Court establishes the court as a court of the member states. As a court established by treaty participating in the interoperation of European Union law, it bears similarities to the Benelux Court of Justice.[17] An initial proposal, which shared many similarities with the proposed European Patent Litigation Agreement, and which included non-EU countries, was found to be incompatible with EU law by the Court of Justice of the European Union, as it would lead to a court not falling fully within the legal system of the European Union and thus without the possibility to ask prejudicial questions to the EU court of justice.[18] As a result, the court was established by an intergovernmental treaty between the participating states outside the framework of the EU, but only open to members of the EU.[19]

Signatures[edit]

The agreement was signed on 19 February 2013 in Brussels by 24 states: 23 states involved in the unitary patent (all except Poland and Bulgaria), as well as Italy. It is open to any member state of the European Union (whether they participated in the unitary patent or not), but not to other parties to the European Patent Convention. Bulgaria signed the agreement on 5 March, after finalizing their internal procedures.[20][21] Meanwhile, Poland decided to wait to see how the new patent system works before joining due to concerns that it would harm their economy.[22] While Italy did not participate in the unitary patent regulations, it is currently engaged in a parliamentary process on the question of participating.[23][24][25] Regardless of the outcome of that process, becoming a party to the UPC agreement will allow the court to handle European patents which are in force in the country.[26] Spain and Croatia (which subsequently acceded to the EU in July 2013) are the only EU member states not participating in either the UPC or the unitary patent although it is open to any of these countries to accede to the unitary patent system at any time.

Entry into force[edit]

The agreement will enter into force for the first group of ratifiers after three conditions are met: at least 13 of the contracting member states (including the three where most European patents are registered: France, Germany and United Kingdom) need to have deposited their ratification or accession instrument, and the required amendment to the Brussels I Regulation needed to have entered into force. The date of entry into force will be on the first day of the fourth month after the conditions are met, but not before 1 January 2014.[5][1]

An overview of the process regarding entry into force criteria is shown below.

Status of entry into force conditions
Condition Status Date satisfied
Brussels I amendment entry into force In force 30 May 2014
Ratification by 3 largest patent granting states 1 -
Ratification by at least 13 states 6 -

For signatories ratifying or acceeding after the overall entry into force of the agreement, their membership shall take effect on the first day of the fourth month after the member state deposits its instrument of ratification or accession.[1]

Commencement of operations[edit]

For operations of the Unified Patent Court to commence, the agreement shall have entered into force, and practical arrangements have to be made. To this end, five working groups of the Preparatory Committee have been established to perform their preparatory work.[27] The Preparatory Committee indicated at its inaugural meeting in March 2013, that early 2015 was a realistic target date for commencement of operations for the Unified Patent Court.[2] At its fifth meeting in March 2014 it was announced, that training of candidate UPC judges was expected to start in autumn 2014, but due to the large amount of all the other remaining preparatory work, the committee had decided to revise its roadmap with the commencement of operations being postponed until "the end of 2015 at the earliest".[28] The revised roadmap now shows, that the UPC rules of procedure is expected to be adopted in May 2015, and that the last testing phase of the courts operational IT system shall be completed in the fourth quarter of 2015.[29] The EPO Select Committee - responsible for the implementation of the unitary patent - also needs to have completed its work ahead of the UPC's commencement of operations. In the beginning of 2015, the Preparatory Committee plans to announce a specific target date for commencement of operations.[30]

Ratification[edit]

In October 2013, European Council President Herman Van Rompuy stated that the "dream of a single patent still isn't fully fulfilled" and he "urged the EU's member states to ratify the agreement."[31] A list of signatory countries is shown below including the status of ratification.[15][16]

Signatory Signature[16] Institution Conclusion
date
Majority
needed
In favour Against AB Deposited[15] Ref.
 Austria 19 February 2013 Federal Council 18 July 2013 50% Majority approval 6 August 2013 [32][33]
National Council 6 July 2013 50% Majority approval[a] [35][36]
Presidential Assent -
 Belgium 19 February 2013 Senate 13 March 2014 50% 46 8 0 6 June 2014 [37][38]
Chamber of Representatives 23 April 2014 50% 107 19 0 [39][40]
Royal Assent 27 May 2014 - Granted [37]
 Bulgaria 5 March 2013[b] National Assembly
Presidential Assent -
 Cyprus 19 February 2013 House of Representatives
Presidential Assent -
 Czech Republic 19 February 2013 Chamber of Deputies
Senate
Presidential Assent -
 Denmark 19 February 2013 Folketing 29 April 2014 50%[41][c] 90 21 0 20 June 2014 [43][44]
Referendum 25 May 2014 50% 62.5% 37.5% - [45]
Royal Assent 2 June 2014 - Granted [46]
 Estonia 19 February 2013 Riigikogu
Presidential Assent -
 Finland 19 February 2013 Parliament
Presidential Assent -
 France[d] 19 February 2013 National Assembly 13 February 2014 50%[47][48] Approved 14 March 2014 [49][50][51]
Senate 21 November 2013 50%[48][52] Majority approval [49][53][54]
Presidential Assent 24 February 2014 - Granted [49]
 Germany[d] 19 February 2013 Bundesrat
Bundestag
Presidential Assent -
 Greece 19 February 2013 Parliament
Presidential Promulgation -
 Hungary 19 February 2013 National Assembly
Presidential Assent -
 Ireland 19 February 2013 House of Representatives 50%[55]
Senate 50%[55]
Referendum 50%[55][56]
Presidential Assent -
 Italy[e] 19 February 2013 Chamber of Deputies
Senate
Presidential Assent -
 Latvia 19 February 2013 Parliament
Presidential Assent -
 Lithuania 19 February 2013 Parliament
Presidential Assent -
 Luxembourg 19 February 2013 Chamber of Deputies [57]
Grand Ducal Assent -
 Malta 19 February 2013 House of Representatives (Motion) 21 January 2014 50%[58] Unanimous 9 December 2014 [59][60]
House of Representatives (Act) 50%[58]
 Netherlands 19 February 2013 Senate
House of Representatives
Royal Promulgation -
 Portugal 19 February 2013 Assembly [61]
Presidential Assent -
 Romania 19 February 2013 House of Representatives
Senate
Presidential Assent -
 Slovakia 19 February 2013 National Council
Presidential Assent -
 Slovenia 19 February 2013 National Assembly [62]
Senate
Presidential Assent -
 Sweden 19 February 2013 Riksdagen 27 May 2014 by acclamation 5 June 2014 [63][64]
 United Kingdom,[d]
and  Isle of Man[14]
19 February 2013 House of Commons (IPA 2014) 12 March 2014[f] 50%[65] Approved [66][67]
House of Lords (IPA 2014) 30 July 2013[f] 50%[65] Approved [66][68]
Royal Assent (IPA 2014) 14 May 2014[f] - Granted [66]
House of Commons (Patents Order 2015) [f] 50%
House of Lords (Patents Order 2015) [f] 50%
Royal Assent (Patents Order 2015) [f] -
= States which have ratified the agreement
= States which must ratify the agreement for it to enter into force
= State which does not participate in the unitary patent
Notes
  1. ^ SPÖ, ÖVP, FPÖ and Team Stronach voted in favour, while Grüne and BZÖ voted against the Unified Patent Court law.[34]
  2. ^ The date reported by the agreements database of the depositary is 19 February 2013, while news reports and a dedicated EU patent ratification page of the depositary reports 5 March 2013
  3. ^ In combination with a successful referendum, a 50% majority is required in the Folketing. If no referendum is held, a 5/6 majority of the Folketing is required.[42]
  4. ^ a b c Ratification required for entry into force.
  5. ^ Does not participate in the unitary patent.[26]
  6. ^ a b c d e f These instruments serve for the implementation of the UPC agreement, but do not constitute approval acts of the Agreement, as such acts are formally not required in the UK. See #Ratification notes for details regarding the ratification procedure

Ratification notes[edit]

Denmark

The Ministry of Justice in Denmark issued its opinion in May 2013 that a referendum, or 5/6 majority in the Folketing, was necessary for Denmark to ratify the agreement due to constitutional requirements on the transfer of sovereignty.[42][69] The Danish People's Party and Red-Green Alliance, which controlled enough seats in the Folketing (22 and 12 respectively, or roughly 1/5 of the 175 seats) to block ratification without referendum, stated that a referendum should be held.[42] The People's Party said they would support the UPC if the governing parties promise to either hold a referendum on the proposed EU Banking Union or increase restrictions on the distribution of welfare benefits to foreign nationals in Denmark.[70] After a parliamentary agreement could not be reached, a UPC referendum was held together with the EP election on 25 May 2014.[71] The Danish constitution states that the referendum defaults to a 'yes', unless: at least 30% of all eligible to vote (not the votes cast) vote 'no' and more than 50% of the votes cast vote 'no'.[72] The referendum resulted in 62.5% yes votes,[45] leading to approval of the ratification act with a deposit of the instrument of ratification on 20 June 2014.[15]

Ireland

Ireland initially scheduled a referendum on a constitutional amendment required to ratify the agreement for the autumn of 2013,[73] but it was subsequently postponed to an unscheduled date after the 2014 European Parliament election.[74][75] The Irish minister responsible for the matter, Richard Bruton, confirmed in May 2014 that a constitutional referendum will be held, but the timing had not been decided by the government.[76] The Irish government later revealed in its legislation programme, that it has planned to publish the required "Amendment of the Constitution" bill during the course of 2015, which will amend Article 29 of the Constitution to recognize the Agreement on a Unified Patent Court,[77] and after parliamentary approval will be put to a referendum.

Malta

The parliament passed a motion authorizing the Maltese government to ratify the UPC Agreement on 21 January 2014,[60] in accordance with article 3 of the Maltese Act on Ratification of Treaties.[59] Treaties under this article shall only "become part of Maltese law" and be enforceable, by Act of parliament.[78] As of August 2014, no such act had been submitted by the Maltese government.

United Kingdom

In the UK, there is no requirement for a formal law approving of treaties before their ratification, although according to the Ponsonby Rule they must be laid before Parliament with an explanatory memorandum,[79] which the government did for the UPC Agreement on 23 June 2013.[80] If a treaty contain provisions conflicting with existing national laws, such laws need to be put into compliance with the treaty ahead of its ratification. For this purpose, the Intellectual Property Act (IPA 2014) was approved by parliament and entered into force on 14 May 2014. Section 17 of IPA 2014 has empowered the Secretary of State to make provision by order for giving effect in the United Kingdom to jurisdiction for the Unified Patent Court, provided that a draft of the order has been approved by Parliament.[81] This means that ratification of the UPC agreement will not take place before parliament's approval of the related implementation order. The implementation order, entitled "Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2015", was submitted by the government on 10 June 2014 for a technical review with a 2 September 2014 deadline for replies. The government plans to present the results within 3 months of that date and base their final draft order to the parliament upon consideration of the review.[14]

Isle of Man: In July 2013, the government of Isle of Man requested to be included in the UK ratification of the UPC agreement if possible.[82] The UK government plans to extend the Unified Patent Court Agreement to the Isle of Man, and to cooperate with the dependency to apply the unitary patent there upon entry into force of the UPC agreement.[14] According to Article 34 of the UPC Agreement, "Decisions of the Court shall cover, in the case of a European patent [without unitary effect], the territory of those Contracting Member States for which the European patent has effect". The European Patent Convention has been extended to the Isle of Man and all European patents valid in UK are currently also automatically valid in Isle of Man.

Amendment of the Brussels I regulation[edit]

A proposal for amendments of the Brussels I regulation was presented by the European Commission on 26 July 2013, and needed to be approved by the Council of the European Union and the European Parliament.[83] By the votes 523 against 98, the Parliament approved an amended version of the amendment on 15 April 2014.[84] The same amendment was adopted by the Council of the European Union in a Ecofin Council meeting on 6 May 2014,[85] and formally entered into force on 30 May 2014 as Regulation 542/2014.[86] Regulation 542/2014 amends the recast Brussels I Regulation 1215/2012, which is applicable from January 2015, and asserts that the Unified Patent Court has jurisdiction within the European Union if a contracting state to the Agreement would have jurisdiction in a matter regulated by the Agreement. It furthermore renders the jurisdiction rules applicable in cases between parties in one EU country and parties from a country outside the Union, a situation where normally national law, rather than EU law applies.

Legal challenges[edit]

Spain and Italy both filed individual actions for annulment of the unitary patent regulation with the European Court of Justice (CJEU cases C-274/11 and C-295/11) in May 2011, arguing the use of enhanced cooperation was improper and the introduced trilingual (English, French, German) language regime system for the unitary patent, which they viewed as discriminatory to other EU languages, would be non-compliant with the EU treaties because of distorting competition, causing a misuse of Council powers and functioning detrimental to the internal market.[87][88] On 16 April 2013, CJEU rejected both complaints.[87][89]

In March 2013, Spain filed two new actions for annulment (CJEU cases C-146/13[90] and C-147/13[91]) of (part of) the two unitary patent regulations, arguing there is a "misapplication of the Meroni case law" in the delegation of administrative tasks to the European Patent Office, because its setting and distributing of renewal fees is not subject to the necessary EU supervision.[92] The cases were subject to court hearing on 1 July 2014.[93][94] Advocate-General Yves Bot published his opinion on 18 November 2014, suggesting that both actions be dismissed (ECLI:EU:C:2014:2380 and ECLI:EU:C:2014:2381). If the opinion is not followed and the Spanish complaints are upheld by the Court it could delay or block the introduction of the unitary patent,[95] which would limit the jurisdiction of the Unified Patent Court to European Patents (without unitary effect) in accordance with Article 3 of the UPC Agreement - but not necessarily delay its commencement of operations.

See also[edit]

Notes[edit]

  1. ^ Opposition, limitation and revocation proceedings are still available centrally after grant.
  2. ^ See also London Agreement (2000).

References[edit]

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  3. ^ "Deal reached: Unitary patent court to have three homes". Science/Business. 27 June 2012. Retrieved 29 June 2012. 
  4. ^ "European Council, 28/29 June 2012, Conclusions (EUCO 76/12, CO EUR 4, CONCL 2)". Brussels: European Council (General Secretariat of the Council). 29 June 2012. Retrieved 30 June 2012. Given the highly specialised nature of patent litigation and the need to maintain high quality standards, thematic clusters will be created in two sections of the Central Division, one in London (chemistry, including pharmaceuticals, classification C, human necessities, classification A), the other in Munich (mechanical engineering, classification F). 
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  7. ^ "Veidos vienotas patentu tiesas reģionālo noda". The Cabinet of Ministers of the Republic of Latvia (in Latvian). 25 February 2014. Retrieved 27 February 2014. 
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  13. ^ Article 10 of the Agreement
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