A guide to the UPC and the UP - Flipbook - Page 14
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The Unitary patent will have “a unitary character” i.e. it may only be limited, transferred or
revoked, or lapse, in respect of all the Contracting Member States. The exception to this is
that a Unitary patent may be licensed in respect of the whole or part of the territories of
the Contracting Member States.
The New System: The Unified Patent Court
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A Unitary patent will be enforced through the Court. The Court is the first supranational court to
have jurisdiction over the citizens of so many sovereign nation states. It is an international court
set up by treaty for the enforcement of both European patents and Unitary patents.
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Unitary patents will be subject to the exclusive jurisdiction of the Court: an injunction granted
by the Court will stop infringements in all Contracting Member States; but, by the same token,
the Unitary patent will remain vulnerable throughout its life to being revoked in an action
before a single court.
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For European patents, the Court can decide in a single decision on infringement and validity
for all those Contracting Member States where the European patent is in force, unless it has
been opted out of the system by the patentee.
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There is a transitional period of seven years, extendable to 14 years following the UPCA
coming into force, during which European patents may be opted out of the Court’s jurisdiction.
Although an opt-out fee was initially proposed, this was dropped following negotiation.
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National patents will remain subject to the jurisdiction of national courts.
Contracting Member States
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The 24 signatory Member States of the UPCA are: Austria, Belgium, Bulgaria, Cyprus, Czechia 6,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania,
Luxembourg, Malta, Netherlands, Portugal, Romania, Slovakia, Slovenia and Sweden. Of those
24 signatories, seven namely Cyprus, Czechia, Greece, Hungary, Ireland, Romania and Slovakia
have not, to date, ratified it.
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Spain, Poland and Croatia have not signed the UPCA. Although Croatia, which joined the EU
after the UPCA was signed, is expected to join the UPCA at some point, for the time being
Spain and Poland remain opposed to the new system. In 2013, Spain and Italy’s 2011 challenge
to the legitimacy of the proposed court system was dismissed by the Court of Justice of the EU
(CJEU). In March 2013, Spain began a fresh challenge against the two EU Regulations, namely
the Regulation creating the Unitary patent and the Translation Regulation. Both legal challenges
were dismissed by the CJEU in May 2015. Initially Italy indicated that it wished to participate
in the Unitary patent but not in the Court. However, following the rejection of Spain’s legal
challenges, Italy decided to join the UPCA in 2015.
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For ease of reference, the table at the end of this chapter sets out, in respect of the Member
States, the status of each country as regards their signing and ratification of the UPCA as well
as the existence, number, and location of local/regional divisions and the identity of the
Presiding Judge.
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Only Member States can be part of the Unitary Patent Package (i.e., the UPCA and the two
Regulations). There are therefore, as at the opening of the Court on 1 June 2023, four categories
of EPC contracting member state: first, those (Member States) that have signed the UPCA and
also ratified it 7 – as such Unitary patents are effective in them; second, those (Member States)
6
7
The official name of the Czech Republic.
Austria, Belgium, Bulgaria, Denmark, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands,
Portugal, Slovenia and Sweden.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 4
