Unified Patent Court (UPC): Here we go!
Today, 1 June 2023, the Agreement on the Unified Patent Court (EU Council Decision No. 2013/175/EU) enters into force. The senior judges of the Court of First Instance and all technical judges will be sworn in today in Paris, while the senior judges of the Court of Appeal will be sworn in on 5 June in Luxembourg.
17 countries have already ratified the agreement (and this will rise to 24), namely Austria, France, Portugal, Lithuania, Belgium, Luxembourg, Sweden, Estonia, Bulgaria, Malta, Finland, Latvia, Denmark, the Netherlands, Italy, Slovenia and Germany. There are 3 countries that have not joined, namely Poland, Spain and Croatia.
What is the Unitary Patent?
The Unitary Patent is a new patent title that will have unitary validity in all adhering countries, through the payment of a single fee, and will be granted by the European Patent Office (EPO). The filing and examination of the application, drafted in a language to be chosen from English, French or German, will be done through the same procedures necessary for the European Patent until it is granted. After granting, the patent holder will have one month to request that the European patent be granted the unitary effect.
The UPnitary Patent may only be granted, limited, trasferred, declared invalid or lapse as a unitary title. It will not replace but will stand alongside the patent protection that exists today at national level (in Italy at the UIBM) and at European level (at the EPO).
What is the opt-out?
On 1 March 2023 the sunrise period began, during which patent holders can request exclusion from the jurisdiction of the UPC ('opt-out'). The opt-out is foreseen only during a transitional period of 7 years from the entry into force of the UPC Agreement (plus a possible further 7 years).
What is the Unified Patent Court (UPC)?
The UPC is a new patent court common to all adhering EU Member States that will have jurisdiction, in countries that have ratified the Agreement, over unitary patents as well as traditional European patents that are not 'opted out'.
The Court will have jurisdiction over infringement and validity actions, actions for damages and requests for provisional and precautionary measures and injunctions.
The new Court of first istance includes one Central Division, with seats in Paris, Munich and Milan (replacing London after Brexit), as well as Local and Regional Divisions (in Italy, the Local Division is based in Milan). The Court of Appeal is based in Luxembourg.
The Milan seat of the Central Division will become operational as of 1 June 2024. For this reason, the competences that were originally assigned to the London seat will now be divided between the other two seats and in particular Paris will have jurisdiction for patents of section (A) 'Human necessities' (a category that includes agri-food, clothing, jewellery and health articles) and Munich for patents in section (C) 'Chemistry and Metallurgy'.
It is not yet certain what jurisdiction Milan will have, but it is likely that it will be entrusted with disputes on Section A patents, exclusind supplementary protection certificates (i.e. titles that allow the extension of the patent term to recover the time absorbed by the authorisation procedure for placing the product on the market).
The Italian Government has stated that it has taken steps to ensure that the decision on the division of competences is subject to a review in 2026, which will allow the proper functioning to be quickly verified and any imbalances to be corrected.