A guide to the UPC and the UP - Flipbook - Page 96
Competence of the Divisions
6-41
Once international jurisdiction and the competence of the Court has been established,
the internal distribution of cases between the divisions becomes relevant. Applying the
rules in art.33 UPCA, the claimant must consider whether the action belongs to the central
division or a local or regional division. If the answer is a local or regional division, the claimant
must consider which division is competent. If the answer is the central division, the claimant
must consider to which section or seat the case will be allocated. 56
6-42
In summary, actions for infringement should be started in one of the divisions where the
infringing act took place or where the defendant is resident, and revocation actions and actions
for a DNI should be commenced in the central division. In the alternative and with the exception
of those cases brought against EPO decisions in respect of Unitary patents, 57 the parties can
agree the division, including the central division, in which their case will be heard. 58 The rules
are summarised in figure 6-1.
Figure 6-1: Where to File?
Except
Parties may agree any division (central or
a relevant local/regional division) (art.33(7))
Action against EPO decisions will be
in the central division (art.33(9))
In the absence of an agreement
under art.33(7), the following applies
Where to file first action
Action
Division
Infringement;
Local/regional division based on arts 33(1) (a) or (b);
Provisional or protective measures
and injunctions;
OR central if:
Action for damages arising from
provisional protection; or
Actions relating to prior use.
•
Infringement in 3 or more regions (art.33(2)); or
•
Relevant Contracting Member States have
no division (art.33(1));
OR claimant has choice if defendant is outside EU (art.33(1))
Action for revocation or
Declaration of non-infringement (DNI)
Central division
Licences of right
Local/regional division based on art.33(1)(b); OR central if:
•
Infringement in 3 or more regions (art.33(2)); or
•
Relevant Contracting Member States have no division
(art.33(1));
OR claimant has choice if defendant is outside EU (art.33(1))
Which regional/local division? (arts 33(1)(a) and (b))
art.33(1):
a. The division of the state(s) where infringement takes place; or
b. The division of the state(s) where the defendant is resident/has a principal place of business/has a place
of business
If relevant state(s) have no local or regional division then central division (art.33(1)).
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 86
