‘A new dawn for patents’: the UPC opens its doors

A project decades in the making, the Unified Patent Court and Unitary Patent promise to change the European IP landscape, writes Marisa Woutersen.

After decades of development and years of delays, the Unified Patent Court (UPC) has officially launched today, June 1.

The court and its Unitary Patent creates a single patent jurisdiction across a large portion of the European market, significantly changing the IP landscape.

So far, seventeen states—Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden—have joined the system, with eight additional EU member states expected to participate in the future.

President of the Court of Appeal, Klaus Grabinski, highlighted the historic nature of the court’s opening, describing it as “the first court in civil and commercial matters shared by a multitude of EU member states before which companies, non-commercial organisations and individuals can litigate”.

The UPC is set to change the landscape of patent litigation in Europe as the court will make it possible to enforce a European patent across borders before only one court in only one infringement proceeding, continued Grabinski.

“The panels deciding on the cases will have an international composition of legally qualified judges who, most of the time, will be joined by a technically qualified judge.

“Due to its European structure and the quality of its judges most of which have a background as experienced patent judges in the national jurisdictions, it can be expected that the court will contribute to the development of a coherent and harmonised understanding of European patent law,” he added.

‘Most important patent development for 50 years’

European Patent Office (EPO) president, António Campinos, said the day “heralds a new dawn for patents and innovation in Europe.”

Campinos said the achievement “wouldn't have been possible” without the “unwavering dedication and tireless efforts of exceptional experts, political representatives, patent system users everywhere, and, of course, the remarkable work of the EPO staff, among many others”.

“The EPO has been entrusted with administering the Unitary Patent by the member states, and together with our stakeholders, we're going to make it another success for Europe."

The court’s launch “marks the single most important development in the European patent system in the last fifty years since the signing of the European Patent Convention on 5 October, 1973”, said the office in a statement.

AIPPI reporter general Ari Laakkonen welcomed the launch of the UPC and highlighted that “the UPC will bring benefits not just to the European economy, but also more broadly, through greater global industry focus on technological development.”

‘Uncharted territory’

The launch has not come about without uncertainty. For UK attorneys, this was compounded by the country’s withdrawal from the project it had helped create.

Chartered Institute of Patent Attorneys CIPA president Daniel Chew told WIPR that the UPC “represented uncharted territory for all representatives”.

However, continuing to expand on the situation from a UK perspective, Chew reiterated that “UK patent attorneys retain rights of representation and have been looking forward to participating in the new system for a number of years.”

The UPC has influenced how European law firms in particular manage their IP practices.

IP litigation boutique Powell Gilbert announced on the eve of the court’s launch that it would operate an office in Ireland to cater for UPC work, with all 14 of its partners admitted to practise in the country.

Ireland has indicated that it will participate in the court and is expeted to ratify the UPC Agreement next year.

Powell Gilbert parter Alex Wilson said the “final arrival of the UPC is a big moment in European patent disputes—but whether it proves to be an oasis will depend on how predictable it proves to be.”

Hopes for a more efficient case management system

HGF partner Rachel Fetches referenced issues with the CMS that have dogged the court since the sunrise period began on March 1, causing frustration for attorneys.

“The management of the sunrise phase for opt-outs and early requests for UPs was not as smooth as it should have been given the long run up to launch,” said Fetches, who hoped that once the court was fully functional, resources will be allocated to ensure that the CMS works more efficiently.

However, the court’s impact on IP litigation cannot be underestimated, she said.

“We expect that it will be a bit of a rollercoaster ride for litigants over the next few years with challenges and test cases determining the boundaries and meaning of the UPC Agreement and Rules of Procedure,” added Fetches.

“We expect, however, that it will be the de facto patent litigation forum for EU member states within the next five years and its likely to have a huge influence on patent law across all European Patent Convention countries.”

Did you enjoy reading this story?  Sign up to our free daily newsletters and get stories sent like this straight to your inbox.