A guide to the UPC and the UP - Flipbook - Page 15
that have signed the UPCA but not ratified it 8 – as such Unitary patent are not effective in them
and they stand in a similar position to those states that either (even though they are Member
States) have not signed the UPCA or (because they are not Member States) cannot to do so –
the Court has no jurisdiction over their nationally validated European patents; third, those
(Member States) that have not signed it 9 – as such Unitary patents are not effective in them
and the Court has no jurisdiction over their nationally validated European patents; fourth,
those who cannot sign it because they are not a Member State – there are 11 in total including
Switzerland, the UK and Turkey – as such Unitary patents are not effective in them and the
Court has no jurisdiction over their nationally validated European patents.
1-23
The position of those EPC Contracting States that for whatever reason remain outside the UPCA
is as follows:
– Although nationals from those states can request unitary status for their European patents
on grant, the Unitary patent would not be effective in those states. Protection could only
be sought by validating a European patent on grant or applying for a national patent;
– Litigation (be it an infringement or revocation action) can only take place before the national
courts of that state – the Court will not have jurisdiction over a European patent validated
in that state;
– That said, the Court would have jurisdiction to grant provisional and protective measures
where such measures are necessary;
– The Court may in certain circumstances have the ability to grant relief for damage arising
in those states from infringement of a Unitary or European patent in a Contracting Member
State under the so called “long arm” jurisdiction of the Court;
– It will be easier to enforce an order of the Court in those that are Member States than those
that are not.
Preparatory Committee and Rules of Procedure
1-24
8
9
To ensure the rapid establishment of the Court following ratification of the UPCA, the
Contracting Member States set up the Preparatory Committee in 2013 with representatives
from each of the Contracting Member States sitting on the Committee. As well as dealing with
logistical preparations for the Court such as the legal framework, judicial training, IT and other
facilities, the Preparatory Committee has been responsible for the creation of the Rules of
Procedure (RoP) which are the subject of this book. A Drafting Committee was responsible
for drafting the RoP and for consulting with professional and industry bodies assisted by an
Expert Panel of judges and practitioners. The final version of the RoP was adopted in August
2022. This reflects the painstaking determination of those involved to achieve a consensus
of best procedural practice taking into account the different views of practitioners from
the different Contracting Member States in the light of their various legal traditions.
Cyprus, Czechia, Estonia, Greece, Hungary, Ireland, Romania and Slovakia.
Poland, Spain and Croatia.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 5
