A guide to the UPC and the UP - Flipbook - Page 113
Figure 7-1: Hierarchy and Sources of Applicable Law Before the Court
Union Law
UPCA
EPC
Other International Agreements
National Law
Private International Law
Rules of Union Law
Private International Law Rules
of International Instruments
National Provisions on Private
International Law Rules
7-07
It should be noted that the substantive patent law before the Court on infringement and validity
of a Unitary patent is actually to be found in two separate treaties. The law on infringement
(of both European and Unitary patents) is contained in arts 25 to 27 UPCA. 7 Meanwhile the
law relating to validity and construction of the claims of a Unitary patent (as well as European
patent) is to be found in the EPC.
EU Law as a Source of Law
7-08
As set out in art.24(1)(a) UPCA, EU law heads the list of the applicable law before the Court.
Its prominent status amongst the relevant sources of law is underlined by art.20 UPCA,
according to which the Court must apply EU law in its entirety and respect its primacy.
The primacy of EU law over the laws of Member States is a fundamental principle of EU law,
having been specifically established by the CJEU. 8 Case law confirms that EU law takes
precedence over national law, thus it is essentially a conflict of laws rule. In such a conflict,
the national laws become inapplicable rather than invalid. This approach is consistent with
the objective of the Unitary Patent Package, namely the creation of uniform patent protection.
7-09
A wide range of EU law may be relevant to proceedings before the Court. The wording of
art.24(1)(a) UPCA specifically refers to the Unitary Patent Regulation and the Translation
Regulation. Beyond that, further Regulations and Directives fall under the scope of
art.24(1)(a) UPCA.
7
8
See paragraphs 7-14 to 7-16 for the reasons for this.
See, for instance, CJEU judgment Flaminio Costa v E.N.E.L. (C-6/64) [1964] ECR I-01141.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 103
