A guide to the UPC and the UP - Flipbook - Page 120
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The date of the filing of the application for the Unitary patent is decisive for all sub-sections
of art.7 Unitary Patent Regulation. In this way a fixed link to the EPO register is established
and thus the applicable national law remains the same for the whole term of the Unitary
patent ensuring legal certainty. Figures 3-1 and 3-2 in chapter 3 (Transactions with Unitary
Patents and European Patents Subject to the Court) and accompanying text explain how art.7
Unitary Patent Regulation determines the national law to be applied to a Unitary patent.
The following is a summary.
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According to art.7(1)(a) Unitary Patent Regulation, the applicable national law is that of the
country in which the applicant on the relevant date has its residence or principal place of
business and according to art.7(1)(b) Unitary Patent Regulation, where the applicant does not
have its residence or principal place of business in a Contracting Member State, the national law
of the country in which the applicant has a place of business on the relevant date applies. 49
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Art.7(2) Unitary Patent Regulation concerns the situation in which two or more persons are
entered in the European Patent Register as joint applicants. In that case the applicable law is
determined by the order in which the applicants are listed in the EPO register. The higher
priority is then given to the residence or principal place of business of the first or, alternatively,
the second applicant (and so on). Only subsequently is the place of business of either taken
into account.
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Art.7(3) Unitary Patent Regulation applies where none of the applicants, at the relevant date,
have a residence, principal place of business or even place of business in a Contracting
Member State. In that case, the Unitary patent is to be treated as a national patent of the
state where the EPO has its headquarters i.e., in Munich, Germany. Thus, the applicable
law is German law in these cases. This provision is likely in practice to apply to a substantial
proportion of Unitary patents.
Translation Regulation
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The Translation Regulation is the second element of the Unitary Patent Package. The Council of
the European Union enacted it on 17 December 2012. It is specifically mentioned in art.24(1)(a)
UPCA and thus is part of the applicable law for Unitary patents.
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In 2013, Spain also brought a nullity action against this Regulation. 50 This time, Spain relied on
five arguments, claiming inter alia the infringement of the principle of non-discrimination on the
ground of language. The CJEU also dismissed this action on all grounds in its judgment dated
5 May 2015 51 and thus further cleared the way for the Unitary patent.
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According to art.1, the Translation Regulation implements cooperation in the area of the
creation of unitary patent protection with regard to the applicable translation arrangements.
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The Translation Regulation contains further translation arrangements in art.3 regarding the
translation requirements for the Unitary patent and in art.4 regarding the translation
requirements in the event of a dispute. Furthermore, art.5 Translation Regulation concerns
the administration of a compensation scheme and art.6 Translation Regulation contains
transitional provisions.
49
50
51
See chapter 3 (Transactions with Unitary Patents and European Patents Subject to the Court) paragraphs 3-03 to 3-15 for a
discussion of these terms and some examples of the application of art.7(1) Unitary Patent Regulation.
Action brought on 22 March 2013, Kingdom of Spain v Council of the European Union (C-147/13) OJ No. C 171, 15.6.2013, p.16.
See paragraph 7-13 for the action against the Unitary Patent Regulation.
Kingdom of Spain v Council of the European Union (C-147/13) ECLI:EU:C:2015:299.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 110
