Update May 2023

On 1st June the opening of the Unified Patent Court (UPC) begins the biggest project in European patenting since the opening of the European Patent Office (EPO). This new court has full jurisdiction over the Unitary Patent (UP), as well as each national patent validated in one of the UP states after grant of a European patent – unless an opt-out is registered (Art. 34 UPCA).

The UPC: a special court?

The UPC provides an independent body of law with:

  • 89 Articles constituting the Agreement on a Unified Patent Court (UPCA), supplemented by
  • 311 Rules of Procedure in 12 sub-sections; and
  • 38 Articles making up the Statute of the Unified Patent Court

This court will be responsible for infringement and validity of the patents tried before it, thereby profoundly influencing and unifying EU law on patent infringement whilst also shaping case law on novelty, inventive step and patentable subject matter. An underlying aim of the UPC is to provide reliable, EU-wide protection to patent owners: the court having authority to grant injunctions in each of the participating UP Member States with a single action. The damage awards from the UPC will reflect the full geographic scope of the granted patent and are expected to far exceed those obtained via country-by-country enforcement.

Being a supra-national EU court, the UPC comprises:

  • Two Central Divisions: Paris & Munich
  • 13 Local Divisions: Brussels, Copenhagen, Düsseldorf, Mannheim, Munich, Hamburg, Helsinki, Lisbon, Ljubljana, Milan, Paris, The Hague and Vienna
  • One Regional Division covering: Stockholm, Tallinn, Riga and Vilnius
  • One Court of Appeal in Luxembourg

Each Division will no doubt add a “national flavour” to the proceedings, this further extending to the Judges composing the panel. The Court of Appeal will be charged with swiftly harmonising the application of the UPCA, bringing predictability and reliability for the stakeholders.

If this weren’t already “special enough”, proceedings before the UPC are highly time-constrained: first instance decisions being concluded within one year is a significant challenge to all parties, requiring a dedicated team of legal and technical experts. The time limits will prove particularly challenging for defendants responding to the Statement of Claim as they have:

  • 1 month to file objections to UPC competence or language of proceedings (R 19.1 UPCA)
  • 3 months to file a Statement of Defence and Counterclaim for Revocation (R 23 UPCA)

When defending against a revocation action, the Patentee’s defence must be filed within:

  • 2 months of service of the Statement for Revocation (R 49 UPCA)

As each Statement of Defence must comprise a complete response, possibly including expert opinions, there is no time to waste in building your team of European Patent Litigators – defendants must act immediately!

Navigating the UPC: A special court needs specialized experts!

Meissner Bolte has legal and technical experts experienced in prosecution and enforcement of patents in all subject-matter fields. With 11 offices around Germany and one in the UK, Meissner Bolte boasts over 80 attorneys admitted as Representatives before the UPC.

Our attorneys bring decades of experience in contentious matters, crucially in a jurisdiction which mirrors closely the handling of cases in front of the UPC: primarily paper based, limited expert testimony and short oral hearings. We always assign a “team of competence”, comprising appropriate technical experts and litigators, to each matter, thus ensuring that our clients have full support in all procedural, substantive and strategic aspects throughout their case.

Meissner Bolte is also a founding member of the European Patent Litigators Network (EPLN), this Network providing you with access to our trusted partners in other UPC Member States, should your case not be actionable in Germany. For more information, please visit: www.epln.com

We are already looking forward to the new challenges that the UPC will bring and look forward to any questions or assistance we can provide. Do not hesitate to find out more: www.mb.de

Our promise to you:

  • 24h: Initial assessment of case  
  • 1 Week: In-depth strategy meeting; in person or virtual
  • 1 Month: Draft response to the court ready