News on the Unitary Patent and the Unified Patent Court

The European Parliament has adopted the regulations on the creation of the Unitary Patent and also voted for the Unified Patent Courton December 11, 2012. The agreement on the Unified Patent Court shall be signed on February 18, 2013.

1) Unitary Patent


A Unitary Patent will have equal effect in the member states of the European Union participating at this closer cooperation. Presently, Italy and Spain do not intend to participate. It may only be limited, transferred or revoked, or lapse, in respect of all the participating member states.

This is in contrast to the present European patents, which split up in a bundle of national patents upon grant, so that the European patent may have a different scope of protection in different member states. An applicant will have the choice between the Unitary Patent and European patent. 

2) Unified Patent Court

The Unified Patent Court will be competent to handle disputes concerning both, future Unitary Patents and the European patents.

The Unified Patent Court will decide, among other things, on infringement or non-infringement of European Patents and Unitary Patents, counterclaims or claims for revocation of these patents. The decisions and orders of the Court shall have effect in any contracting member state.

The Unified Patent Courtw ill be composed of a Court of first instance and a Court of appeal.

Further, a patent mediation and arbitration centre will be set up in Lisbon (Portugal) and Ljubljana(Slovenia).

a) Court of first instance

The Court of first instance will have local/regional divisions and a central division. The seats of the local/regional divisions will be decided by the respective member states. The seat of the central division will be Paris. Specialised clusters of the central division will be set up in London(Classifications A and C) and in Munich(Classification F).

The panel of the regional/local divisions will be composed of three legally qualified judges. On request of the panel or the parties or in case of a counterclaim of revocation, a technically qualified judge will be allocated to the local/regional division. The panel of the central division will be composed of two legally qualified judges and one technically qualified judge for infringement and revocation proceedings.

Which Court of first instance (local, regional or central division) is competent for a claim will depend on the actual case:

For infringement proceedings, it may depend, for example, on the place of infringement, i.e. in which member state the actual or threatened infringement has occurred, the residence or the place of business of the defendant, whether the contracting member state concerned has a local division or participates at a regional division, or on an agreement of the parties. In case of counterclaims for revocation, a local/regional division has the discretion to refer the case or the counterclaim for decision to the central division. The local/regional division may also proceed with the infringement proceedings and the counterclaim for revocation.

Actions with respect to revocation or non-infringement of a patent shall be brought before the central division, in case no infringement action has been initiated previously. An infringement action started thereafter may be brought before the competent local/regional division or the central division. In case the infringement action is started before a local/regional division, said local/regional division has the discretion to proceed or suspend the infringement proceedings or to refer the infringement proceedings for decision to the central division with agreement of the parties.

Thus, the proceedings with respect to revocation and infringement may be handled at the same court (like the present system in France) or at different courts (like the present system in Germany).

b) Court of appeal

The decisions of the Court of first instance can be appealed before the Court of appeal. The panel of the Court of appeal will be composed of five judges, in particular three legally qualified judges and two technically qualified judges. The Court of appeal will have its seat in Luxembourg.

3) Entry into force

The goal is that the agreements shall enter into force on January 1, 2014. However, it may be later depending on the ratification or accession process of the member states.

There will be a transitional period of seven years after the date of entry into force, in which the infringement/revocation proceedings of a European patent can still be initiated before the national courts or competent authorities. Further, the holders of European patents or European patent applications before the entry into force may opt-out from the exclusive competence of the Unified Patent Court, subject to a time limit.

This is only a rough overview over the Unified Patent Courta nd the Unitary Patent. We will you inform you about the further developments in this issue.

For any further questions, please contact Jacob Klinkisch

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