Unified Patent Court

The Unified Patent Court

The Unified Patent Court (UPC) and Unitary Patent will introduce the most radical changes to patent litigation in Europe in 40 years.

The Unified Patent Court (UPC) and the European patent with unitary effect (Unitary Patent) are expected to come into full force in early 2023. The Unitary Patent is a new, single pan-European right protecting an invention, which prohibits anyone but the owner or their licensees from practising that invention in all of the participating EU Member States.

As Europe’s leading patent law firm, Taylor Wessing has combined its resources from these and other European countries to establish a uniquely adaptable and capable UPC Group to fit exactly the needs of your specific case in the UPC: 

  • Law – we bring knowledge of the key substantive and procedural law traditions that are expected to shape UPC law and practice. 

  • Language – our linguistic skills and the location of our offices ensure that you can be easily represented in the major languages and divisions of the UPC. 

  • Legal skills – our lawyers bring a flexible and complementary mixture of common and civil law experience and skill sets, enabling us to deal with all of the opportunities and challenges that the UPC will bring for you.

If you hold patents in Europe, the introduction of the UPC will have an impact on your filing strategy. To help you navigate this nuanced system, our international patent law experts have created an introductory guide that outlines the far-reaching changes and addresses the common questions that matter most to your business.

View UPC guide
View UPC guide

Frequently asked questions

What is the UPC?

For the very first time, after decades of negotiations and many stops and starts along the way, right holders in Europe will get the option to add Unitary Patents to their patent portfolios and also the addition of a single patent litigation system covering the major part of the European market – the UPC.

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What is a Unitary Patent? 

The Unitary Patent is an independent IP right, which exists in addition to national and European patents and has uniform effect in all participating countries - validation in each country as for European patents is not required. 

The procedure for grant is identical to that for the European patents in the European Patent Office (EPO).

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What is the effect of opting out of European patents?

Starting in the ‘sunrise period’ and continuing for the seven-year transitional period that begins when the UPC enters into force, a European patent can be permanently opted out from the jurisdiction of the UPC either as an application or a granted patent. The effect of opt-out is to give the national courts exclusive jurisdiction for each respective national validation of a European patent until expiry, just as it would have had without the UPC.

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How is the UPC structured?

The UPC will consist of a Court of First Instance and a Court of Appeal (which includes a Full Court of Appeal for exceptional cases). The Court of First Instance will have a central division and numerous regional and local divisions located across the participating countries. While the central division will be split between locations, every participating country may set up a local division or – together with one or more other participating countries – a regional division.

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What does litigation under the UPC cost?

According to the current proposal for the fee schedule there are two kinds of fees for using the UPC:

  • fixed fees, which are payable for initiating an action (infringement, declaration of non-infringement, revocation), applications for search and seizure of evidence, leave to appeal and other procedural steps 

and, additionally, for infringement actions and declarations of non-infringement:

  • a value-based fee.
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Who can bring an action and where?

Natural persons and legal entities are entitled to bring an action in all proceedings before the UPC. The patent proprietor of a Unitary Patent or a (non opted-out) European patent as well as the exclusive licensee have the standing to bring infringement actions, provided the licensee informs the proprietor accordingly. A non-exclusive licensee is only entitled to bring an action if the licence agreement expressly permits it.

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What are the stages of infringement and revocation proceedings?

Infringement and revocation proceedings on the merits before the Court of First Instance consist of a written, an interim, and an oral procedure.

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What are the means of evidence and means of obtaining evidence?

As a basic principle, the burden of the proof of facts is on the party relying on those facts. The burden of proof is reversed however, if a contested product is identical to products derived by the process in suit for obtaining a new product.

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What remedies are available in the UPC?

A finding of infringement in the UPC may lead to an award of damages or an account of profits, for which a calculation must take all appropriate aspects into account as well as possible moral prejudice.

The UPC does not however provide for punitive damages. Damages awarded on a licence analogy will only be awarded “in appropriate cases”.

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What are the potential advantages and disadvantages for your business?

Faced with the new system, do you leave your European patents within the jurisdiction of the UPC system, or instead opt them out from it? Considering whether to convert some or all newly European patents into Unitary Patents is also important. There are a number of factors to consider when making these decisions that impact on your business.

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Related experts

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UPC news

19 January 22 The Protocol on Provisional Application enters into force. With the launch of the PAP, the UPC is officially a new born international organisation! 
18 January 22 Austria deposited its instrument of ratification of the Protocol on Provisional Application of the UPC Agreement.
02 December 21 Austria joins the Protocol on the Provisional Application of the UPC Agreement. The preparation phase of the UPC can begin!
21 November 21  Taylor Wessing announces a major Unified Patent Court publishing project
19 November 21 The Austrian Parliament approves the Protocol on Provisional Application; ratification is expected in the near future (in accordance with Austrian law).
27 September 21 Germany ratifies the Protocol on the Provisional Application of the UPCA (PAP Protocol).
12 August 21 The Agreement on a Unified Patent Court is published in the Bundesgesetzblatt Teil II (Federal Law Gazette) Part II; it will come into force on 13 August 2021.
13 July 21 The Unified Patent Court (UPC) and Unitary Patents.
09 July 21  The German Federal Constitutional Court rejects two applications for preliminary injunctions against the Agreement on a Unified Patent Court by its decision of 23 June 2021.
22 January 21 New – presumably short – delay of the Unified Patent Court due to two constitutional complaints with expedited motions.
28 December 20 Major step forward for the Unified Patent Court - German Bundesrat approves law on the Agreement on a Unified Patent Court.