A guide to the UPC and the UP - Flipbook - Page 40
Figure 3-1: National Law Applying to a Unitary Patent
Was the applicant resident, or did it have a
principal place of business, in a Participating
Member State at the relevant time*?
Yes
The law of that Participating
Member State will apply
(art.7(1)(a) UPR)
No
Did the applicant have a place of business in
a Participating Member State at the relevant time*?
Yes
The law of that Participating
Member State will apply
(art.7(1)(b) UPR)
No
The law of the State where the EPO has
its headquarters, i.e. Munich, Germany
(art.6 para. 1 EPC)
*Relevant time = the date of the filing of the application for the Unitary patent
3-05
The filing date of the application for the Unitary patent is decisive for all sub-sections of art.7
Unitary Patent Regulation. In this way, the applicable national law remains the same for the
whole term of the Unitary patent.
3-06
The expressions “residence”, “principal place of business” and “place of business” are not
defined in the Unitary Patent Regulation, although they are defined in other EU instruments
for the purposes of those instruments. For example, “residence” is defined as the place where
a person habitually resides in relation to the coordination of social security, 6 and the Hague
Convention on Choice of Court Agreements (to which the EU is a party) states that an entity
other than a natural person resides in the State: 7
– Where it has its statutory seat;
– Under whose law it was incorporated or formed;
– Where it has its central administration; or
– Where it has its principal place of business.
3-07
“Principal place of business” is included, not only in the Hague Convention, but in the list of
places where a person is considered domiciled in the Brussels I Regulation (recast). 8 The UK
High Court held that, within the context of the Brussels I Regulation, the expression meant
chief or most important rather than the place where most of the business was carried out. 9
3-08
EU law which makes no express reference to the law of the Member States for the
purpose of determining its meaning, must normally be given an autonomous and uniform
interpretation throughout the EU. 10 Given the lack of definitions provided in the Unitary Patent
6
7
8
9
10
art.1(j) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of
social security systems (OJ No. L 166, 30.4.2004, p.1).
art.4(2) Hague Convention on Choice of Court Agreements (Concluded 30 June 2005) available at
https://www.hcch.net/en/instruments/conventions/full-text/?cid=98 [Accessed 22 March 2023].
art.63(1)(c) Brussels I Regulation (recast).
King v Crown Energy Trading A.G. [2003] EWHC 163 (Comm) at [8] to [15].
The CJEU held that “establishment” in art.97(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community
trade mark (OJ No. L 78, 24.3.2009, p.1), did not necessarily have to bear the same meaning as in the Brussels I Regulation
(recast). See Hummel Holding A/S v Nike Inc. (C-617/15) ECLI:EU:C:2017:390 at [22] and [25].
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 30
