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27 August 2015Big PharmaPaul England and Christof Höhne

The role of the UPC

News has emerged from the July 10 meeting of the Unified Patent Court (UPC) Preparatory Committee that it is considering a ‘provisional operation’ period for the new court, starting in January 2016.

The provisional period would allow appointment of a registrar and other key roles, and further ratifications of the UPC agreement by contracting member states. It would also allow the recording of opt-outs of European (‘classical’) patents, instead of the earlier proposed sunrise period.

The period would run until a formal start date for the court, in autumn 2016 at the earliest. The formal start date would then allow for the lodging of the court’s first cases. The provisional operation period is yet to be confirmed officially, but it would bring forward the date at which European patents can be opted-out, compared with the previous estimates of sometime in 2017–2018.

This article looks at what will happen after the transitional period, which is scheduled to last seven years—if it is not extended.

After the transitional period expires (and article 83 of the UPC agreement no longer applies), the UPC will be (exclusively) competent to hear cases relating to European patents, as well as unitary patents.

Its specific competence is listed in articles 32(1)(a) to (i) of the UPC agreement, with the prefix that this is “exclusive” vis-à-vis national courts.

For all other actions not listed in the exclusive competence, the national courts of the contracting member states “remain competent”—however not with the prefix “exclusive”. A competing non-exclusive competence of the UPC with the national courts outside of the exclusive scope of article 32(1) of the UPC agreement is therefore suggested by the wording of articles 32(1) and (2) of the agreement.

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