The Unitary Patent System and the Unified Patent Court (UPC)

As things stand, June 1, 2023 is planned as the long-awaited launch date for the Unitary Patent System and the Unified Patent Court. The Unitary Patent is a European Patent with unitary effect in the territories of all participating EU Member States that will have ratified the Agreement on a Unified Patent Court (UPC Agreement) at the time of registration of the unitary effect (currently these are Germany, France, Italy, Austria, Portugal, the Netherlands, Belgium, Luxembourg, Austria, Slovenia, Denmark, Sweden, Finland, Estonia, Latvia, Lithuania and Bulgaria). The UPC is a common court of the participating EU Member States and contracting states of the UPC Agreement. It has exclusive jurisdiction over Unitary Patents as well as classic European Patents which have been validated in one or more states. The UPC decisions have effect in the territories of all participating EU Member States which have ratified the UPC Agreement.

The Unitary Patent System and the UPC lead to some innovations and patent owners or patent applicants have to consider these innovations in their own patent portfolio strategy or litigation strategy and act accordingly. This certainly includes the question of whether to have existing ("classic") European Patents (automatically) converted to Unitary Patents or to choose a so-called "opt-out". An opt-out would remove the European Patent from the jurisdiction of the UPC during the transitional phase. The same applies to newly filed European Patents, which can be given unitary effect in the participating EU Member States by filing a request within one month after publication of the grant of the patent (so-called "opt-in"). The decision of an "opt-in" or an "opt-out" can certainly not be made in a blanket manner on the basis of a few criteria. Rather, it requires a closer examination of the individual case. Among other things, patent portfolio strategy, validation of the patents through opposition or nullity proceedings already survived, and the significance of the patent play a role here.

The success of the Unitary Patent System with the associated UPC will certainly depend on how many of the participating EU Member States ratify the UPC Agreement and thus actually join the Unitary Patent System. The more Member States participate in the Unitary Patent System from the beginning, the more interesting and significant it will be for patent owners and patent applicants. Especially if the European market and economic area is understood in a uniform way, only a uniform protection of immaterial property makes sense.

The Unitary Patent System as well as the proceedings before the UPC should be time- and cost-saving or be carried out in a correspondingly efficient manner. In this context, electronic proceedings, electronic submission of party observations and evidence, as well as interim procedure and oral proceedings in the form of video conferences. To what extent the time limit regime provided for in the Rules of Procedure will be complied with in practice is questionable due to the complexity of patent litigation and the possibility, also provided for in the Rules of Procedure, of granting extensions of time limits and additional pleadings.

The UPC has exclusive jurisdiction over both infringement and nullity proceedings. It consists of a Court of First Instance, a Court of Appeal and the Registry. The Court of First Instance comprises a central division as well as local divisions and regional divisions (the latter are local divisions covering several contracting Member States). The central division is seated in Paris and has a section in Munich. The Court of Appeal has its seat in Luxembourg. The Registry performs administrative tasks and formal examinations of the pleadings received.

Germany will in all likelihood play a central role in the Unitary Patent System as well as in the UPC, which is reflected not least in the fact that Germany has four local divisions (Hamburg, Düsseldorf, Mannheim and Munich) in addition to a central division section. The central role is already reflected in the UPC Rules of Procedure, which correspond to German court and office proceedings in terms of basic structures and fundamental procedures. Thus, we assume that the entire Unitary Patent System as well as the case law of the UPC will be very much influenced by the German understanding of patent law and procedural law.

Even an initial review of the Rules of Procedure reveals a few peculiarities, some of which to be getting used to, if not criticism, which are not anchored in German procedural law in this way and must therefore be taken into account:

• Between the written procedure and the oral procedure, a so-called interim procedure is inserted (in the expectation different from the conciliation hearing in German procedural law), in which the rapporteur makes all necessary preparations for the oral procedure.
• The interim hearing and the oral proceedings (including the examination of witnesses) are recorded.
• The examination of the party is not only designed for informational purposes, but as evidence.
• Written (sworn) testimony is also admissible evidence in the main proceedings.
• Decisions and orders of the court shall be published.
• Amendments and additions to a claim in later pleadings, including counterclaims, shall be substantiated as to why the amendment or addition was not already contained in an earlier pleading.
• The withdrawal of the action shall be subject to the court's decision after hearing the other party. The motion to withdraw shall not be admitted if the other party has a legitimate interest in having the court decide on the action.

Ultimately, it remains to be seen how the Unitary Patent System will be accepted by patent applicants and patent owners and what the UPC will make of it. It certainly offers portfolio-strategic and procedural possibilities for enforcing and defending rights. Here, it is worth pausing and taking a detailed look at the issue instead of simply opting out. Due to the still relevant EPC, the further known Union law, the judicial/patent office decisions at European level issued so far and the fact that among the judgeship of the UPC there are many judges from the national patent litigation chambers, a large part of the previous (also national) case law will certainly be taken over by the UPC. However, there is also the possibility of shaping the case law and direction of the UPC (albeit probably only in nuances). After all, a new court is being constituted whose judges will bring their respective national patent law doctrine and jurisprudence to the chambers, and technical judges may also be involved in the chambers' decision-making. However, one thing is certain –  the first decisions of the UPC will already be eagerly awaited and discussed in detail.