A guide to the UPC and the UP - Flipbook - Page 16
Provisional Application Phase
1-25
In order to provide a smooth transition into the operational phase of the Court, the Contracting
Member States entered into a Protocol to provide for the provisional application of certain
parts of the UPCA immediately on the necessary numbers of Contracting Member States
ratifying the UPCA to bring it into effect. This took place on 19 January 2022 when Austria as the
13th Contracting Member State deposited its instrument of ratification with the Council of the
EU. The Protocol allowed the institutional, organisational and financial provisions of the UPCA
to come into effect, that is, the Registry to be set up and the members of the Administrative
Committee, the Budget Committee and the Advisory Committee to be appointed. The setting up
of these Committees in turn allowed the RoP to be adopted and the judges to be appointed and
trained (although some training of prospective judges had already taken place beforehand).
Unique Features
1-26
The Court system is unique and unusual in that, for the first time in the EU, a comprehensive
system of courts, substantive law and procedural rules is being created from the beginning,
starting as it were from a blank page.
1-27
In the case of other EU-wide intellectual property rights, such as trade marks and designs, the
Member States designate their own national courts as EU trade mark or design courts and rely
on preliminary references to the CJEU to ensure uniform interpretation. By contrast the UPCA
has created a supranational court system at first instance level and a separate and independent
Court of Appeal.
1-28
Following the decision of the CJEU in its Opinion 1/09 holding that the 2009 proposal for a
European and EU Patents Court was not compatible with EU law, the UPCA confirms the
primacy of EU law, and specifies that the Court should base its decisions on: EU law, including
the EU Regulations; the UPCA; the EPC; international patents instruments applicable to all
Contracting Member States; and national law.
1-29
Earlier drafts of the EU Regulation setting up the Unitary patent had controversially included
arts 6 to 8 dealing with direct and indirect infringement, as well as the limitations and
exceptions to patent protection. Following criticism about the inclusion of substantive patent
law as part of EU law, these provisions were deleted from the draft EU Regulation and moved
to the UPCA, since this is an international treaty and not an instrument of EU law. The decision
to remove arts 6 to 8 from the EU Regulation was intended to ensure that the CJEU, a court
without specialist patent expertise, would not be showered with referral questions requesting
preliminary rulings from it on the interpretation of patent law. However, art.20 UPCA requires
acceptance of the supremacy of EU law in its entirety, including the obligation to make referrals
to the CJEU on patent-related EU regulations and Directives.
1-30
The creation of a new court system, rather than the use or adaptation of existing national
court infrastructures, has meant that it has been possible to develop a system which is suitable
for the internet age. Litigation in the Court will be conducted online from the initiation of
proceedings and at every stage afterwards using online forms. This book will therefore not
only be available in print but also via subscription online and as an e-book, which will enable
it to be updated quickly and easily as the decisions of the Court are handed down.
1-31
The creation of a new system from the outset also means that participants from all the various
industries who use the system will have an opportunity to be involved in and influence the
development of the law and procedure of the Court.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 6
