A guide to the UPC and the UP - Flipbook - Page 112
Introduction
7-01
The three pieces of legislation comprising the Unitary Patent Package i.e. the Unitary
Patent Regulation, the Translation Regulation and the UPCA do not provide for a contain
form a coherent and complete patent law system on their own. Accordingly, the determination
of the applicable law in relation to any particular issue is complex and the provisions are not
always easily understandable. The multiplicity of sources of law results from concerns
regarding the competence of the CJEU in patent law matters. However, the allocation of
substantive patent law to the UPCA 1 does make sense in view of the fact that the Court will rule
on both Unitary patents and European patents, while European patents are not subject to the
other elements of the Unitary Patent Package.
7-02
Most of the rules that relate to applicable law can be found in the Unitary Patent Regulation and
the UPCA. Due to the lack of a cohesive body of law, the key provisions relevant for identifying
the applicable law are drafted as conflict of law rules. In reality, these are reference rules merely
directing the means of determining the law applicable in any given circumstances rather than
prescribing specifically the law to be applied. This should be kept in mind when looking at the
individual provisions.
Applicable Law before the Court
7-03
The first section of this chapter addresses the applicable law before the Court. For all
cases brought before the Court, the sources of law are set out in a list in art.24(1) UPCA.
In summary these are:
– EU Law; 2
– The UPCA; 3
– The EPC; 4
– Other relevant international agreements; 5 and
– National law. 6
7-04
Art.24(2) UPCA contains a second list, for cases where the Court has to base its decision on
national law. In such situations the applicable national law is determined by the respective
private international law rules of:
– Directly applicable EU law;
– International instruments; or
– National provisions.
7-05
These lists do not merely set out the sources of law, rather, it is widely accepted that they set
out a hierarchy of the applicable law. Accordingly, a lower ranked source of law can only be
applied where the higher ranked source of law does not contain any or all of the relevant rules.
7-06
This hierarchy set out in arts 24(1) and (2) UPCA is shown in figure 7-1.
1
2
3
4
5
6
arts 25 to 27 UPCA. Art.30 UPCA extends these provisions to SPCs.
art.24(1)(a) UPCA.
art.24(1)(b) UPCA.
art.24(1)(c) UPCA.
art.24(1)(d) UPCA.
art.24(1)(e) UPCA.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 102
