Agreement on a Unified Patent Court (UPCA)

A Unified Patent Court for the settlement of disputes relating to European patents and European patents with unitary effect is hereby established.

The Unified Patent Court shall be a court common to the Contracting Member States and thus subject to the same obligations under Union law as any national court of the Contracting Member States.

For the purposes of this Agreement:

(a) ‘Court’ means the Unified Patent Court created by this Agreement.

(b) ‘Member State’ means a Member State of the European Union.

(c) ‘Contracting Member State’ means a Member State party to this Agreement. 

(d) ‘EPC’ means the Convention on the Grant of European Patents of 5 October 1973, including any subsequent amendments.

(e) ‘European patent’ means a patent granted under the provisions of the EPC, which does not benefit from unitary effect by virtue of Regulation (EU) No 1257/2012.

(f) ‘European patent with unitary effect’ means a patent granted under the provisions of the EPC which benefits from unitary effect by virtue of Regulation (EU) No 1257/2012.

(g) ‘Patent’ means a European patent and/or a European patent with unitary effect.

(h) ‘Supplementary protection certificate’ means a supplementary protection certificate granted under Regulation (EC) No 469/2009 ⁽¹⁾ or under Regulation (EC) No 1610/96 ⁽²⁾.

(i) ‘Statute’ means the Statute of the Court as set out in Annex I, which shall be an integral part of this Agreement.

(j) ‘Rules of Procedure’ means the Rules of Procedure of the Court, as established in accordance with Article 41.

^Footnote

^{(1) Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (OJ L 152, 16.6.2009, p. 1) including any subsequent amendments.}

^{(2) Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary certificate for plant protection products (OJ L 198, 8.8.1996, p. 30) including any  subsequent amendments}

This Agreement shall apply to any:

(a) European patent with unitary effect;

(b) supplementary protection certificate issued for a productprotected by a patent;

(c) European patent which has not yet lapsed at the date of entry into force of this Agreement or was granted after that date, without prejudice to Article 83; and

(d) European patent application which is pending at the date of entry into force of this Agreement or which is filed after that date, without prejudice to Article 83.

Commentary

In UPC_CFI_359/2023 (Fujifilm Corporation vs. Kodak GmbH et al., decision of 2 April 2025), it was stated that there is no competence of the UPC for European patents and their national parts which have already lapsed before 1 June 2023. The UPC has no jurisdiction over a European patent with regard to those national parts of UPCA member states which have already lapsed before 1 June 2023 (=date of entry into force of the UPCA). The same applies to national parts of non-UPCA-member states. Without prejudice to Art. 83 UPCA, Art. 3 (c) UPCA vests upon the UPC jurisdiction over any pre-existing European patent which has not yet lapsed at the date of the UPCA’s entry into force, i.e., 1 June 2023. In this context, the term “any European patent” in Art. 3 (c) UPCA has to be construed as meaning “any national part thereof”. Accordingly, recital 3 to the UPCA sees the purpose of the EPC as providing for a single procedure for granting European patents. The UPCA further acknowledges said legal structure by harmonizing in part the substantive law of its member states applicable to then existing national parts for infringing acts committed after its entry into force (cf. Local Division Mannheim, decision of 11 March 2025, UPC_CFI_159 mn. 91 et seqq., UPC_CFI_162/2024 mn. 95 et seqq.). Art. 3 (c) UPCA​​​​​​​ cannot be interpreted so as to establish the UPC’s jurisdiction over national parts having lapsed before the UPCA’s entry into force provided that one single national part is still in force at that date.

1. The Court shall have legal personality in each Contracting Member State and shall enjoy the most extensive legal capacity accorded to legal persons under the national law of that State.

2. The Court shall be represented by the President of the Court of Appeal who shall be elected in accordance with the Statute.

1. The contractual liability of the Court shall be governed by the law applicable to the contract in question in accordance with Regulation (EC) No 593/2008 ⁽³⁾ (Rome I), where applicable, or failing that in accordance with the law of the Member State of the court seized.

2. The non-contractual liability of the Court in respect of any damage caused by it or its staff in the performance of their duties, to the extent that it is not a civil and commercial matter within the meaning of Regulation (EC) No 864/2007 ⁽⁴⁾ (Rome II), shall be governed by the law of the Contracting Member State in which the damage occurred. This provision is without prejudice to the application of Article 22.

3. The court with jurisdiction to settle disputes under paragraph 2 shall be a court of the Contracting Member State in which the damage occurred.

^Footnote

^{(3) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6) including any subsequent amendments.
(4) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ L 199, 31.7.2007, p. 40) including any subsequent amendments.}

Commentary

State liability for breaches of EU law is a general principle set out in the CJEU case law, even if there are no provisions in the EU Treaty in this regard. Art. 5 UPCA determines the law applicable for liability claims against the UPC. Art. 22 UPCA relates to the joint and several State liability for damage caused by infringements of Union law.

In ECJ Joint Cases C-6/90 and 9/90 (Andrea Francovich et al. v. Italian Republic, judgement of 28 May 1991) the European Court of Justice stated that the full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain reparation when their rights are infringed by a breach of Community law for which a Member State can be held responsible. Such a possibility of reparation by the Member State is particularly indispensable where the full effectiveness of Community rules is subject to prior action on the part of the State and where, consequently, in the absence of such action, individuals cannot enforce before the national courts the rights conferred upon them by Community law. It follows that the principle whereby a State must be liable for loss and damage caused to individuals by breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty. 

In ECJ C-224/01 (Gerhard Köbler v Republik Österreich, judgment of 30 September 2003) the European Court of Justice stated that the principle that Member States are obliged to make good damage caused to individuals by infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals, the breach  

A) is sufficiently serious and there  

B) is a direct causal link between that breach and the loss or damage sustained by the injured parties.  

In order to determine whether the infringement is sufficiently serious when the infringement at issue stems from such a decision, the competent national court, taking into account the specific nature of the judicial function, must determine whether that infringement is manifest 

In ECJ C-542/14 (SIA VM Remonts v. Konkurences padome, judgement of 21 July 2016) the European Court of Judgement stated that that Article 101(1) TFEU must be interpreted as meaning that an undertaking may, in principle, be held liable for a concerted practice on account of the acts of an independent service provider supplying it with services only if one of the following conditions is met: 

A) the service provider was in fact acting under the direction or control of the undertaking concerned, or 

B) that undertaking was aware of the anti-competitive objectives pursued by its competitors and the service provider and intended to contribute to them by its own conduct, or 

C) that undertaking could reasonably have foreseen the anti-competitive acts of its competitors and the service provider and was prepared to accept the risk which they entailed. 

This ruling might be relevant for liability against the PMAC e.g. in FRAND cases. 

PMAC Mediation and Arbitration is a contractual relationship between the parties and the Mediators / Arbitrators by Mediation / Arbitration Agreement (see Art. 1 Rules of Mediation RoM and Art. 1 and Art. 9 Rules of Arbitration RoA). Art. 29 RoM and Art. 54 RoA restrict liability to damage caused by intentional wrongdoing. The parties waive, to the fullest extent permitted under the applicable law, any claim against the Mediator / Arbitrators, the PMAC and any person appointed by the Tribunal based on any alleged act or omission in connection with the proceedings conducted under these Rules. Art. 29 extends the exclusion of liability for organs and employees of the PMAC.

The UPC handles sensitive information in the electronic files. UPC and PMAC are entitled to safeguard appropriate technical and organizational measures for data protection. 

In CJEU Case C-340/21 (VB v. Natsionalna agentsia za prihodite, judgement of 14 December 2023), the Court of Justice of the European Union stated that Art. 24 and 32 GDPR (EC Regulation 2016/679) must be interpreted as meaning that unauthorised disclosure of personal data or unauthorised access to those data by a ‘third party’, within the meaning of Art. 4(10) GDPR, are not sufficient, in themselves, for it to be held that the technical and organisational measures implemented by the controller in question were not ‘appropriate’, within the meaning of Art. 24 and 32 GDPR. Recital 83 GDPR states, in its first sentence, that ‘in order to maintain security and to prevent processing in infringement of this Regulation, the controller or processor should evaluate the risks inherent in the processing and implement measures to mitigate those risks’, without claiming that it would be possible to eliminate the risks. Art. 82(3) GDPR must be interpreted as meaning that the controller cannot be exempt from its obligation to pay compensation for the damage suffered by a data subject, under Art. 82(1) and (2) GDPR, solely because that damage is a result of unauthorised disclosure of, or access to, personal data by a ‘third party’, within the meaning of Art. 4(10) GDPR, in which case that controller must then prove that it is in no way responsible for the event that gave rise to the damage concerned.

1. The Court shall comprise a Court of First Instance, a Court of Appeal and a Registry.

2. The Court shall perform the functions assigned to it by this Agreement.

1. The Court of First Instance shall comprise a central division as well as local and regional divisions.

2. The central division shall have its seat in Paris, with sections in London and Munich. The cases before the central division shall be distributed in accordance with Annex II, which
shall form an integral part of this Agreement.

3. A local division shall be set up in a Contracting Member State upon its request in accordance with the Statute. A Contracting Member State hosting a local division shall designate its seat.

4. An additional local division shall be set up in a Contracting Member State upon its request for every one hundred patent cases per calendar year that have been commenced in that Contracting Member State during three successive years prior to or subsequent to the date of entry into force of this Agreement. The number of local divisions in one Contracting Member State shall not exceed four.

5. A regional division shall be set up for two or more Contracting Member States, upon their request in accordance with the Statute. Such Contracting Member States shall designate the seat of the division concerned. The regional division may hear cases in multiple locations.

1. Any panel of the Court of First Instance shall have a multinational composition. Without prejudice to paragraph 5 of this Article and to Article 33(3)(a), it shall sit in a composition of three judges.

2. Any panel of a local division in a Contracting Member State where, during a period of three successive years prior or subsequent to the entry into force of this Agreement, less than
fifty patent cases per calendar year on average have been commenced shall sit in a composition of one legally qualified judge who is a national of the Contracting Member State hosting the local division concerned and two legally qualified judges who are not nationals of the Contracting Member State concerned and are allocated from the Pool of Judges in accordance with Article 18(3) on a case by case basis.

3. Notwithstanding paragraph 2, any panel of a local division in a Contracting Member State where, during a period of three successive years prior or subsequent to the entry into force of this Agreement, fifty or more patent cases per calendar year on average have been commenced, shall sit in a composition of two legally qualified judges who are nationals of the Contracting Member State hosting the local division concerned and one legally qualified judge who is not a national of the Contracting Member State concerned and is allocated from the Pool  of Judges in accordance with Article 18(3). Such third judge shall serve at the local division on a long term basis, where this is necessary for the efficient functioning of divisions with a high work load.

4. Any panel of a regional division shall sit in a composition of two legally qualified judges chosen from a regional list of judges, who shall be nationals of the Contracting Member States concerned, and one legally qualified judge who shall not be a national of the Contracting Member States concerned and who shall be allocated from the Pool of Judges in accordance  with Article 18(3). 

5. Upon request by one of the parties, any panel of a local or regional division shall request the President of the Court of First Instance to allocate from the Pool of Judges in accordance with
Article 18(3) an additional technically qualified judge with qualifications and experience in the field of technology concerned. Moreover, any panel of a local or regional division may, after having heard the parties, submit such request on its own initiative, where it deems this appropriate. In cases where such a technically qualified judge is allocated, no further technically  qualified judge may be allocated under Article 33(3)(a).

6. Any panel of the central division shall sit in a composition of two legally qualified judges who are nationals of different Contracting Member States and one technically qualified judge  allocated from the Pool of Judges in accordance with Article 18(3) with qualifications and experience in the field of technology concerned. However, any panel of the central division dealing  with actions under Article 32(1)(i) shall sit in a composition of three legally qualified judges who are nationals of different Contracting Member States. 

7. Notwithstanding paragraphs 1 to 6 and in accordance with the Rules of Procedure, parties may agree to have their case heard by a single legally qualified judge. 

8. Any panel of the Court of First Instance shall be chaired by a legally qualified judge.

1. Any panel of the Court of Appeal shall sit in a multinational composition of five judges. It shall sit in a composition of three legally qualified judges who are nationals of different Contracting  Member States and two technically qualified judges with qualifications and experience in the field of technology concerned. Those technically qualified judges shall be assigned to the panel by the President of the Court of Appeal from the pool of judges in accordance with Article 18. C 175/4 Official Journal of the European Union 20.6.2013 EN

2. Notwithstanding paragraph 1, a panel dealing with actions under Article 32(1)(i) shall sit in a composition of three legally qualified judges who are nationals of different Contracting Member States.

3. Any panel of the Court of Appeal shall be chaired by a legally qualified judge.

4. The panels of the Court of Appeal shall be set up in accordance with the Statute.

5. The Court of Appeal shall have its seat in Luxembourg

1. A Registry shall be set up at the seat of the Court of Appeal. It shall be managed by the Registrar and perform the functions assigned to it in accordance with the Statute. Subject to conditions set out in this Agreement and the Rules of Procedure, the register kept by the Registry shall be public.

2. Sub-registries shall be set up at all divisions of the Court of First Instance.

3. The Registry shall keep records of all cases before the Court. Upon filing, the sub-registry concerned shall notify every case to the Registry.

4. The Court shall appoint the Registrar in accordance with Article 22 of the Statute and lay down the rules governing the Registrar's service.

An Administrative Committee, a Budget Committee and an Advisory Committee shall be set up in order to ensure the effective implementation and operation of this Agreement. They shall in particular exercise the duties foreseen by this Agreement and the Statute.

1. The Administrative Committee shall be composed of one representative of each Contracting Member State. The European Commission shall be represented at the meetings of the  Administrative Committee as observer. 

2. Each Contracting Member State shall have one vote.

3. The Administrative Committee shall adopt its decisions by a majority of three quarters of the Contracting Member States represented and voting, except where this Agreement or the Statute  provides otherwise.

4. The Administrative Committee shall adopt its rules of procedure.

5. The Administrative Committee shall elect a chairperson from among its members for a term of three years. That term shall be renewable.

1. The Budget Committee shall be composed of one representative of each Contracting Member State.

2. Each Contracting Member State shall have one vote.

3. The Budget Committee shall take its decisions by a simple majority of the representatives of the Contracting Member States. However, a majority of three-quarters of the representatives of  Contracting Member States shall be required for the adoption of the budget.

4. The Budget Committee shall adopt its rules of procedure.

5. The Budget Committee shall elect a chairperson from among its members for a term of three years. That term shall be renewable.

1. The Advisory Committee shall:

(a) assist the Administrative Committee in the preparation of the appointment of judges of the Court;

(b) make proposals to the Presidium referred to in Article 15 of the Statute on the guidelines for the training framework for judges referred to in Article 19; and

(c) deliver opinions to the Administrative Committee concerning the requirements for qualifications referred to in Article 48(2).

2. The Advisory Committee shall comprise patent judges and practitioners in patent law and patent litigation with the highest recognised competence. They shall be appointed, in accordance with the procedure laid down in the Statute, for a term of six years. That term shall be renewable. 20.6.2013 Official Journal of the European Union C 175/5 EN

3. The composition of the Advisory Committee shall ensure a broad range of relevant expertise and the representation of each of the Contracting Member States. The members of the Advisory Committee shall be completely independent in the performance of their duties and shall not be bound by any instructions.

4. The Advisory Committee shall adopt its rules of procedure.

5. The Advisory Committee shall elect a chairperson from among its members for a term of three years. That term shall be renewable.

1. The Court shall comprise both legally qualified judges and technically qualified judges. Judges shall ensure the highest standards of competence and shall have proven experience in the field of patent litigation. 

2. Legally qualified judges shall possess the qualifications required for appointment to judicial offices in a Contracting Member State.

3. Technically qualified judges shall have a university degree and proven expertise in a field of technology. They shall also have proven knowledge of civil law and procedure relevant in patent litigation.

1. The Advisory Committee shall establish a list of the most suitable candidates to be appointed as judges of the Court, in accordance with the Statute.

2. On the basis of that list, the Administrative Committee shall appoint the judges of the Court acting by common accord.

3. The implementing provisions for the appointment of judges are set out in the Statute.

1. The Court, its judges and the Registrar shall enjoy judicial independence. In the performance of their duties, the judges shall not be bound by any instructions.

2. Legally qualified judges, as well as technically qualified judges who are full-time judges of the Court, may not engage in any other occupation, whether gainful or not, unless an exception is granted by the Administrative Committee. 

3. Notwithstanding paragraph 2, the exercise of the office of judges shall not exclude the exercise of other judicial functions at national level.

4. The exercise of the office of technically qualified judges who are part-time judges of the Court shall not exclude the exercise of other functions provided there is no conflict of interest.

5. In case of a conflict of interest, the judge concerned shall not take part in proceedings. Rules governing conflicts of interest are set out in the Statute.

1. A Pool of Judges shall be established in accordance with the Statute.

2. The Pool of Judges shall be composed of all legally qualified judges and technically qualified judges from the Court of First Instance who are full-time or part-time judges of the Court. The  Pool of Judges shall include at least one technically qualified judge per field of technology with the relevant qualifications and experience. The technically qualified judges from the Pool of Judges shall also be available to the Court of Appeal. 

3. Where so provided by this Agreement or the Statute, the judges from the Pool of Judges shall be allocated to the division concerned by the President of the Court of First Instance. The allocation of judges shall be based on their legal or technical expertise, linguistic skills and relevant experience. The allocation of judges shall guarantee the same high quality of work and  the same high level of legal and technical expertise in all panels of the Court of First Instance.

1. A training framework for judges, the details of which are set out in the Statute, shall be set up in order to improve and increase available patent litigation expertise and to ensure a broad  geographic distribution of such specific knowledge and experience. The facilities for that framework shall be situated in Budapest.

2. The training framework shall in particular focus on: 

(a) internships in national patent courts or divisions of the Court of First Instance hearing a substantial number of patent litigation cases; C 175/6 Official Journal of the European Union  20.6.2013 EN

(b) improvement of linguistic skills;

(c) technical aspects of patent law;

(d) the dissemination of knowledge and experience in civil procedure for technically qualified judges; 

(e) the preparation of candidate-judges.

3. The training framework shall provide for continuous training. Regular meetings shall be organised between all judges of the Court in order to discuss developments in patent law and to  ensure the consistency of the Court's case law.

The Court shall apply Union law in its entirety and shall respect its primacy.

As a court common to the Contracting Member States and as part of their judicial system, the Court shall cooperate with the Court of Justice of the European Union to ensure the correct application and uniform interpretation of Union law, as any national court, in accordance with Article 267 TFEU in particular. Decisions of the Court of Justice of the European Union shall  be binding on the Court.

1. The Contracting Member States are jointly and severally liable for damage resulting from an infringement of Union law by the Court of Appeal, in accordance with Union law concerning non-contractual liability of Member States for damage caused by their national courts breaching Union law.

2. An action for such damages shall be brought against the Contracting Member State where the claimant has its residence or principal place of business or, in the absence of residence or principal place of business, place of business, before the competent authority of that Contracting Member State. Where the claimant does not have its residence, or principal place of business or, in the absence of residence or principal place of business, place of business in a Contracting Member State, the claimant may bring such an action against the Contracting Member State where the Court of Appeal has its seat, before the competent authority of that Contracting Member State. The competent authority shall apply the lex fori, with the exception of its private international law, to all questions not regulated by Union law or by this Agreement. The claimant shall be entitled to obtain the entire amount of damages awarded  by the competent authority from the Contracting Member State against which the action was brought.

3. The Contracting Member State that has paid damages is entitled to obtain proportional contribution, established in accordance with the method laid down in Article 37(3) and (4), from the  other Contracting Member States. The detailed rules governing the Contracting Member States' contribution under this paragraph shall be determined by the Administrative Committee.

Commentary

Art. 22 UPCA relates to the joint and several State liability for damage caused by infringements of Union law. The material law is commented on in Art. 5 UPCA.

Actions of the Court are directly attributable to each Contracting Member State individually, including for the purposes of Articles 258, 259 and 260 TFEU, and to all Contracting Member States collectively.

1. In full compliance with Article 20, when hearing a case brought before it under this Agreement, the Court shall base its decisions on:

(a) Union law, including Regulation (EU) No 1257/2012 and Regulation (EU) No 1260/2012 ⁽¹⁾;

(b) this Agreement;

(c) the EPC;

(d) other international agreements applicable to patents and binding on all the Contracting Member States; and

(e) national law.

2. To the extent that the Court shall base its decisions on national law, including where relevant the law of noncontracting States, the applicable law shall be determined:

(a) by directly applicable provisions of Union law containing private international law rules, or

(b) in the absence of directly applicable provisions of Union law or where the latter do not apply, by international instruments containing private international law rules; or

(c) in the absence of provisions referred to in points (a) and (b), by national provisions on private international law as determined by the Court.

3. The law of non-contracting States shall apply when designated by application of the rules referred to in paragraph 2, in particular in relation to Articles 25 to 28, 54, 55, 64, 68 and 72.

_Footnote

^{(1) Council Regulation (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable  translation arrangements (OJ L 361, 31.12.2012, p. 89) including any subsequent amendments.}

Commentary

As to the applicability of R. 80 EPC see commentary at R. 30.1 RoP.

A patent shall confer on its proprietor the right to prevent any third party not having the proprietor's consent from the following:

(a) making, offering, placing on the market or using a product which is the subject-matter of the patent, or importing or storing the product for those purposes;

(b) using a process which is the subject-matter of the patent or, where the third party knows, or should have known, that the use of the process is prohibited without the consent of the patent  proprietor, offering the process for use within the territory of the Contracting Member States in which that patent has effect;

(c) offering, placing on the market, using, or importing or storing for those purposes a product obtained directly by a process which is the subject-matter of the patent.

Commentary

1. Literal infringement – claim interpretation

In UPC_CFI_292/2023 (SES-imgotag SA v. Hanshow Technology et al., order of 20 December 2023), the Local Division Munich considered the prosecution history and found that the original version of the claims of a European patent may be used as an aid to interpretation in connection with amendments to the claims made during the grant proceedings.

2. Second medical use claims

In UPC_CFI_505/2024 (Sanofi v Amgen, decision of 13 May 2025), the court set out general principles for the assessment of infringement of second medical use claims.  The court noted that the purpose-limitation of such a claim contrasts the claim from a “normal” product claim which affords absolute protection, regardless of its (intended) use.  Therefore, the claimants must prove that the allegedly infringing product fulfils the “use” feature(s) of the claim.  The court ruled out a limitation of the scope of protection to cases where the product is already or actually being used for the claimed therapeutic purposes as unduly limiting the protection of the patent proprietor.  Rather, for a finding of infringement, the infringer must offer or place the medical product on the market in such a way that it leads or may lead to the claimed therapeutic use of which the alleged infringer knows or reasonably should have known that it does require are therefore an objective element - a prescription for the use or circumstances showing that such use may be expected to occur – and a subjective element – the infringer must know or should reasonably have known of this.

According to the court, the requirements cannot be defined in an abstract manner, but require an analysis of all the relevant facts and circumstances of the case. Starting from the construction of the patent claim in question, relevant facts may include:

• the extent or significance of the allegedly infringing use,
• the relevant market, including what is customary on that market,
• the market share of the claimed use compared with other uses,
• what actions the alleged infringer has taken to influence the market, 
  • either positively, de facto encouraging the patented use, or
  • negatively, by taking measures to prevent the product from being used for the patented use. 

The manufacturing of the product, the package insert, the SmPC of a pharmaceutical product can be important, but are not always the decisive factor to be taken into account in assessing whether the alleged infringer is in the end liable for patent infringement. 

1. A patent shall confer on its proprietor the right to prevent any third party not having the proprietor’s consent from supplying or offering to supply, within the territory of the Contracting  Member States in which that patent has effect, any person other than a party entitled to exploit the patented invention, with means, relating to an essential element of that invention, for putting it into  effect therein, when the third party knows, or should have known, that those means are suitable and intended for putting that invention into effect.

2. Paragraph 1 shall not apply when the means are staple commercial products, except where the third party induces the person supplied to perform any of the acts prohibited by Article 25.

3. Persons performing the acts referred to in Article 27(a) to (e) shall not be considered to be parties entitled to exploit the invention within the meaning of paragraph 1.

Commentary

In UPC_CFI_07/2023 (Kaldewei v. Bette, decision of 3 July 2024), the court explicitly left undecided the question of whether, for indirect infringement of a European patent subject to the jurisdiction of the UPC but not a unitary patent (i.e. a “bundle patent”), the offer for sale and/or delivery must take place in the same contracting state as the use of the invention or may aimed at use in a different contracting state.  The court noted that different legal commentaries have come to opposite conclusions in this regard.

The rights conferred by a patent shall not extend to any of the following:

(a) acts done privately and for non-commercial purposes; 

(b) acts done for experimental purposes relating to the subjectmatter of the patented invention;

(c) the use of biological material for the purpose of breeding, or discovering and developing other plant varieties;

(d) the acts allowed pursuant to Article 13(6) of Directive 2001/82/EC ⁽¹⁾ or Article 10(6) of Directive 2001/83/EC ⁽²⁾ in respect of any patent covering the product within the meaning of either  of those Directives;

(e) the extemporaneous preparation by a pharmacy, for individual cases, of a medicine in accordance with a medical prescription or acts concerning the medicine so prepared;

(f) the use of the patented invention on board vessels of countries of the International Union for the Protection of Industrial Property (Paris Union) or members of the World Trade Organisation, other than those Contracting Member States in which that patent has effect, in the body of such vessel, in the machinery, tackle, gear and other accessories, when such vessels temporarily or accidentally enter the waters of a Contracting Member State in which that patent has effect, provided that the invention is used there exclusively for the needs of the vessel;

(g) the use of the patented invention in the construction or operation of aircraft or land vehicles or other means of transport of countries of the International Union for the Protection of Industrial Property (Paris Union) or members of the World Trade Organisation, other than those Contracting Member States in which that patent has effect, or of accessories to such aircraft or land vehicles, when these temporarily or accidentally enter the territory of a Contracting Member State in which that patent has effect;

(h) the acts specified in Article 27 of the Convention on International Civil Aviation of 7 December 1944 ⁽³⁾, where these acts concern the aircraft of a country party to that Convention other than a Contracting Member State in which that patent has effect;

(i) the use by a farmer of the product of his harvest for propagation or multiplication by him on his own holding, provided that the plant propagating material was sold or otherwise  commercialised to the farmer by or with the consent of the patent proprietor for agricultural use. The extent and the conditions for this use correspond to those under Article 14 of Regulation (EC) No 2100/94 ⁽⁴⁾;

(j) the use by a farmer of protected livestock for an agricultural purpose, provided that the breeding stock or other animal reproductive material were sold or otherwise commercialised to the farmer by or with the consent of the patent proprietor. Such use includes making the animal or other animal reproductive material available for the purposes of pursuing the farmer's  agricultural activity, but not the sale thereof within the framework of, or for the purpose of, a commercial reproductive activity; 

(k) the acts and the use of the obtained information as allowed under Articles 5 and 6 of Directive 2009/24/EC ⁽⁵⁾, in particular, by its provisions on decompilation and interoperability; and

(l) the acts allowed pursuant to Article 10 of Directive 98/44/EC ⁽⁶⁾.

_Footnote

^{(1) Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products (OJ L 311, 28.11.2001, p. 1)
including any subsequent amendments.}

^{(2) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ L 311, 28.11.2001, p. 67) including any subsequent amendments.}

^{(3) International Civil Aviation Organization (ICAO), ‘Chicago Convention’, Document 7300/9 (9th edition, 2006).}

^{(4) Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ L 227, 1.9.1994, p. 1) including any subsequent amendments.}

^{(5) Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (OJ L 111, 5.5.2009, p. 16) including any subsequent amendments.}

^{(6) Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ L 213, 30.7.1998, p. 13) including any subsequent amendments.}

Any person, who, if a national patent had been granted in respect of an invention, would have had, in a Contracting Member State, a right based on prior use of that invention or a right of personal possession of that invention, shall enjoy, in that Contracting Member State, the same rights in respect of a patent for the same invention.

Commentary

In UPC_CFI_07/2023 (Kaldewei v. Bette, decision of 3 July 2024), the court held that the existence of a prior user right must be substantiated for each of the contracting states in which the patent is in force.  The defendant/accused infringer must demonstrate that the conditions for the existence of a prior user right laid down by the national law of the contracting state concerned are met.  In view of the clear wording of Art. 28 UPCA, there can be no EU-wide prior user right.

The rights conferred by a European patent shall not extend to acts concerning a product covered by that patent after that product has been placed on the market in the European Union by, or with the consent of, the patent proprietor, unless there are legitimate grounds for the patent proprietor to oppose further commercialisation of the product.

Commentary

In UPC_CFI_9/2023 (Huawei v. Netgear, decision of 18 December 2024), the court set out some basic substantive and procedural tenets relating to Art. 29 UPCA.  

The effects of exhaustion of rights extend firstly to device claims.  They also, however, extend to method claims directed to the handling of a product protected by the patent.  This applies both to products directly obtained through an application of the patented method carried out with the permission of the proprietor and to a product that uses a method claim, when it is also protected by a product claim and has been placed on the market with the permission of the proprietor.  Exceptions exist for cases in which the proprietor has expressly reserved permission to use this method.  The effects of exhaustion of rights also extend to a product in which the product to which the proprietor’s permission pertains has been incorporated (in the case at hand: an access point comprising a modem covered by a licence agreement concluded with the manufacturer of the modem).

As regards the applicable law, the question of whether permission has been granted in a contract is to be determined in accordance with the law applicable to the contract.  The legal consequences of that permission, on the other hand, are to be determined in accordance with the law of the territory in which the patent has effect.  The parties cannot agree on the application of a different law.

Placing a product on the market outside the European Union does not result in an exhaustion of rights, even if with the permission of the proprietor.  Whether a product has been placed on the market is a matter of fact, to be determined in respect of individualised products.

According to Art. 29, 2nd half-sentence UPCA, exhaustion exists only and to the extent that the proprietor cannot advance legitimate grounds to oppose further commercialisation of the product.  According to the court, it is recognised in the context of patent law that limitations that the proprietor has imposed in a licence agreement on the authorisation to use products placed on the market pursuant to the licence in principle do not affect the arising of the effects of exhaustion of rights.  In view of this, the court deemed it doubtful that a legitimate interest of the proprietor in forbidding further marketing could ever be assumed.  It should at least be possible for a legitimate interest ruling out exhaustion for the downstream market to be recognisable.  Only then could the adverse effects on the marketability of such products be limited to the absolute minimum required.

Procedurally, the alleged infringer bears the burden of proof for placement on the market in the European Union supported by permission from the proprietor.  He must set out, and in case of dispute prove, specific acts of placement on the market in the European Union in relation to individualised product.  If the proprietor’s permission only applies to products placed on the market within a certain period of time, the case put forward must relate to this as well. 

On the other hand, the proprietor bears the burden of proving legitimate reasons to oppose further commercialisation. 

Where the exception of exhaustion concerns all alleged infringing embodiments, it is to be dealt with immediately in the proceedings on the merits.  If not, it depends on the circumstances whether the question of exhaustion is to be determined definitively in the damages proceedings (enforcement proceedings), but this decision can be prepared in the proceedings on the merits.  In that case, a conviction in the proceedings on the merits would be with reservations conditional on evidence of specific acts of placing on the market of individualised products in the relevant time period.  

A supplementary protection certificate shall confer the same rights as conferred by the patent and shall be subject to the same limitations and the same obligations.

The international jurisdiction of the Court shall be established in accordance with Regulation (EU) No 1215/2012 or, where applicable, on the basis of the Convention on jurisdiction and
the recognition and enforcement of judgments in civil and commercial matters (Lugano Convention) ⁽¹⁾.

_Footnote

^{(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, done at Lugano on 30 October 2007, including any subsequent amendments.}

1. The Court shall have exclusive competence in respect of:

(a) actions for actual or threatened infringements of patents and supplementary protection certificates and related defences, including counterclaims concerning licences;

(b) actions for declarations of non-infringement of patents and supplementary protection certificates;

(c) actions for provisional and protective measures and injunctions;

(d) actions for revocation of patents and for declaration of invalidity of supplementary protection certificates;

(e) counterclaims for revocation of patents and for declaration of invalidity of supplementary protection certificates;

(f) actions for damages or compensation derived from the provisional protection conferred by a published European patent application;

(g) actions relating to the use of the invention prior to the granting of the patent or to the right based on prior use of the invention;

(h) actions for compensation for licences on the basis of Article 8 of Regulation (EU) No 1257/2012; and

(i) actions concerning decisions of the European Patent Office in carrying out the tasks referred to in Article 9 of Regulation (EU) No 1257/2012.

2. The national courts of the Contracting Member States shall remain competent for actions relating to patents and supplementary protection certificates which do not come within the exclusive competence of the Court.

Commentary

In UPC_CFI_50/2024,  (LD Düsseldorf, Yellow Spere v. Härtwich, decision of 10 April 2025,  ACT_6665/2024) it was confirmed that according to Art. 32(1)(f) UPCA (‘Actions relating to the use of an invention’) the Unified Patent Court is competent for actions relating to the use of an invention prior to the grant of a patent, including any financial compensation for the use of a published EP application.

Since the aforementioned compensation is neither regulated in the Regulations on the European patent with unitary effect nor in the UPCA, the court must apply the provision of Art. 67 UPCA on the basis of Art. 24(1)(c) UPCA, which grants the member states room for manoeuvre with regard to the structure (cf. also the table in Tilmann/Plassmann/Grabinski/W. Tilmann, Art. 32 UPCA, para. 103).

Similarly to the right of prior use, there has so far been no standardized regulation on this issue. It is therefore initially up to the claimant seeking compensation to set out the conditions for such compensation for all the individual Member States in question. At the hearing, the plaintiffs only did so with regard to the Federal Republic of Germany. There, the applicant of a published European patent application can claim compensation under Art. II § 1 para. 1 IntPatÜG from the person who used the subject matter of the application. Since there were no submission for the other member states in dispute, the plaintiffs are only entitled to reasonable compensation for the Federal Republic of Germany, but no other Member State.

In UPC_CoA_156/2025 (CoA, XSYS Germany et al. v. Esko Graphics Imaging, order of June 2, 2025), the CoA found that Art. 32(1) UPCA shall be interpretated in accordance with the principles of customary international law, which are part of the EU legal order. The absence of any temporal limitation of the rules on competence under Art. 32(1) UPCA reflects the object and purpose of the Agreement which is to create a court common to the Contracting Member States integrated into their judicial system and to transfer (exclusive) competence to said court for those actions and counterclaims listed under Art. 32 (1) UPCA, in order to prevent the difficulties caused by a fragmented market for patents in Europe and the variations between national court systems.  In the absence of any provision contrary thereto, these object and purpose of the UPCA do neither suggest nor imply any temporal limitation of the Court. Art. 3 UPCA does not address the temporal scope of application of the Agreement in relation to acts infringing the rights listed therein. It therefore leaves open whether acts having occurred before the entry into force are within the scope of application of the Agreement. During the transitional period set out under Art. 83 UPCA, and unless the patent has been opted out from the exclusive competence of the Court pursuant to Art. 83(3) UPCA, the (exclusive) competence of the UPC coexists with a parallel competence of national courts before which an action for infringement of a European patent may still be brought. Although it provides for a concurrent competence during the transitional period according to which the patent holder has the option to initiate infringement proceedings either before the UPC or before a national court, said option is limited to the choice of forum and does not provide, as a result of such a choice, for a partial or limited competence of the elected court, whether as to the subject matter (the patent infringement) of the action or as to the time period for which the chosen court is competent. The determination of the competence of the Court as of the date of lodging the action, including for acts of infringement that have occurred before the entry into force of the Agreement, does not contradict the principle of non-retroactivity of treaties under the principles of customary international law and Art. 28 of the Vienna Convention on the Law of Treaties done at Vienna on 23 May 1969 (“VCLT”). In case of an effective withdrawal from an effective opt-out, the UPC is competent to decide on alleged acts of infringement which have occurred during the time period between the date of the opt-out and that of the withdrawal.

1. Without prejudice to paragraph 7 of this Article, actions referred to in Article 32(1)(a), (c), (f) and (g) shall be brought before:

(a) the local division hosted by the Contracting Member State where the actual or threatened infringement has occurred or may occur, or the regional division in which that Contracting Member State participates; or

(b) the local division hosted by the Contracting Member State where the defendant or, in the case of multiple defendants, one of the defendants has its residence, or principal place of
business, or in the absence of residence or principal place of business, its place of business, or the regional division in which that Contracting Member State participates. An action may be brought against multiple defendants only where the defendants have a commercial relationship and where the action relates to the same alleged infringement. Actions referred to in Article 32(1)(h) shall be brought before the local or regional division in accordance with point (b) of the first subparagraph. Actions against defendants having their residence, or principal place of business or, in the absence of residence or principal place of business, their place of business, outside the territory of the Contracting Member States shall be brought before the local or regional division in accordance with point (a) of the first subparagraph or before the central division. If the Contracting Member State concerned does not host a local division and does not participate in a regional division, actions shall be brought before the central division.

2. If an action referred to in Article 32(1)(a), (c), (f), (g) or (h) is pending before a division of the Court of First Instance, any action referred to in Article 32(1)(a), (c), (f), (g) or (h) between
the same parties on the same patent may not be brought before any other division. If an action referred to in Article 32(1)(a) is pending before a regional division and the infringement has occurred in the territories of three or more regional divisions, the regional division concerned shall, at the request of the defendant, refer the case to the central division. In case an action between the same parties on the same patent is brought before several different divisions, the division first seized shall be competent for the whole case and any division seized later shall declare the action inadmissible in accordance with the Rules of Procedure.

3. A counterclaim for revocation as referred to in Article 32(1)(e) may be brought in the case of an action for infringement as referred to in Article 32(1)(a). The local or regional division  concerned shall, after having heard the parties, have the discretion either to: 

(a) proceed with both the action for infringement and with the counterclaim for revocation and request the President of the Court of First Instance to allocate from the Pool of Judges in
accordance with Article 18(3) a technically qualified judge with qualifications and experience in the field of technology concerned. 

(b) refer the counterclaim for revocation for decision to the central division and suspend or proceed with the action for infringement; or

(c) with the agreement of the parties, refer the case for decision to the central division.

4. Actions referred to in Article 32(1)(b) and (d) shall be brought before the central division. If, however, an action for infringement as referred to in Article 32(1)(a) between the same
parties relating to the same patent has been brought before a local or a regional division, these actions may only be brought before the same local or regional division.

5. If an action for revocation as referred to in Article 32(1)(d) is pending before the central division, an action for infringement as referred to in Article 32(1)(a) between the same parties relating to the same patent may be brought before any division in accordance with paragraph 1 of this Article or before the central division. The local or regional division concerned shall have the discretion to proceed in accordance with paragraph 3 of this Article.

6. An action for declaration of non-infringement as referred to in Article 32(1)(b) pending before the central division shall be stayed once an infringement action as referred to in Article 32(1)(a) between the same parties or between the holder of an exclusive licence and the party requesting a declaration of non-infringement relating to the same patent is brought before a local or  regional division within three months of the date on which the action was initiated before the central division.

7. Parties may agree to bring actions referred to in Article 32(1)(a) to (h) before the division of their choice, including the central division. 

8. Actions referred to in Article 32(1)(d) and (e) can be brought without the applicant having to file notice of opposition with the European Patent Office.

9. Actions referred to in Article 32(1)(i) shall be brought before the central division.

10. A party shall inform the Court of any pending revocation, limitation or opposition proceedings before the European Patent Office, and of any request for accelerated processing before the European Patent Office. The Court may stay its proceedings when a rapid decision may be expected from the European Patent Office.

Commentary

1. Substantiated allegation (“schlüssiger Vortrag”) sufficient for establishing jursidiction

In UPC_CFI_292/2023 (SES-imgotag SA v. Hanshow Technology et al., order of 20 December 2023), the Local Division Munich found that the acts of infringement alleged in the application of 4 September 2023 established the jurisdiction of the Munich Local Division of the UPC. In this context, the question of jurisdiction does not depend on whether the allegation – if substantiated – is ultimately found by the Court to constitute a patent infringement. The legal assessment of whether an act committed in Germany constitutes a patent infringement is not part of the jurisdictional analysis; for this purpose, a substantiated allegation (“schlüssiger Vortrag”) is sufficient.

2. Parallel actions before the Unified Patent Court  – "Same parties" in the sense of Art. 33 (4)

Article 33 (4) UPCA governs the coordination of actions brought before different divisions of the Court when they involve the same patent and the same parties. In UPC_CFI_255/2023 (Edwards Lifescience vs. Meril Italy, order of 13 November 2023)  the Central Division Paris addressed the interpretation of the term “same parties” within the meaning of this provision. The Central Division rejected this broad interpretation. It clarified that the UPCA does not define the term “party”, and therefore looked to national law – in this case, Italian law – to determine party identity. Under Italian legal principles, even close corporate and operational links between entities do not merge their legal personalities. 

The Central Division also refused to apply the broader understanding of party identity developed under Art. 29 Brussels I Recast and CJEU case law, noting that the purpose of that framework (namely avoiding conflicting decisions across jurisdictions) differs from that of Art. 33(4), which is focused on internal coordination within the UPC system. Thus, the UPCA is to be interpreted autonomously, and not by analogy to EU procedural law developed for inter-state disputes.

The argument that Meril Italy was merely a "strawman" for Meril India was equally unsuccessful. The Central Division found no convincing evidence of abuse of process and referred by analogy to the approach of the EPO’s Enlarged Board of Appeal, which accepts oppositions filed by third parties unless an abuse is proven.

This order confirms a narrow and formal interpretation of “same parties” under Art. 33(4) UPCA, based on national corporate law and the autonomy of the UPC’s procedural framework. It allows parties affiliated with a defendant in an infringement action to initiate revocation proceedings at the Central Division, provided they are legally distinct entities. At the same time, the ruling leaves open the possibility to challenge such actions where genuine abuse of process can be demonstrated, notably by showing that the revocation claimant is a mere strawman. This interpretation aligns with German case law on comparable issues (see BGH, X ZR 36/11, marg. 7–8).

3. Parallel actions before the UPC and the EPO and stay of proceedings (Art. 33 (10) UPCA)

In UPC_CFI_80/2023 (Astellas v. Helios et al., order of 20 November 2023), the Central Division in Munich found that the Court has discretion to stay proceedings awaiting any relevant decision from the EPO, provided such decision is expected rapidly. There should be a concrete expectation (i.e. a known date in time) for a decision which date should be in the near future such that it is clearly expected to be delivered before an expected decision by the UPC. In exercising Court’s discretionary power on the basis of Article 33(10) UPCA in connection with Rule 295 sub a RoP, the Court has to assess the relevant facts and circumstances and has to take into account the interests of both parties. Where the interests of the parties do not align, the Court has to weigh up the interests upon deciding a request to stay proceedings. In the view of the Court it was doubtful whether a decision that - at the time of issuing the present order - is expected in just over three months with notification of the decision and the grounds expected some months thereafter can be considered as a “rapid decision” for the purposes of Art. 33 (10) UPCA. The court took into account the likelihood of an appeal after the EPO decision, noting the absence of an “undertaking” by the Defendants not to appeal.

In UPC_CFI_198/2024 (Aylo Premium v. DISH Technologies, decision of 28 May 2025), the Central Division in Paris commented on the situation for the time period after the oral hearing and before the decision and found that Claimant's interest in obtaining a timely judgment and the interest in conducting proceedings which can be terminated in approximately one year outbalance Defendant's interests. The reasons given by the Court to decline a stay prior to the oral hearing, in particular the advanced stage of the proceedings, applied even more and a fortiori after the oral hearing.

Decisions of the Court shall cover, in the case of a European patent, the territory of those Contracting Member States for which the European patent has effect.

Commentary

In UPC_CFI_163/2024 – Decision of 23 May 2025, the Paris Local Division clarified the distinction between jurisdiction (Articles 31–33 UPCA) and the territorial scope of decisions (Art. 34 UPCA). It held that objections based on Art. 34 UPCA are not preliminary objections under Rule 19 RoP and are therefore admissible even if raised later in the proceedings.

On the merits, the Court confirmed that the UPC has jurisdiction over such claims in line with the CJEU’s decision in BSH v. Electrolux and previous UPC rulings (e.g. UPC_CFI_355/2023, UPC_CFI_702/2024, UPC_CFI_792/2024).

In UPC_CFI_198/2024 (Aylo Premium v. DISH Technologies, decision of 28 May 2025), the Central Division in Paris explained that as a general rule, according to Art. 34 UPCA, decisions of the Court shall cover, in the case of a European patent, the territory of those Contracting Member States for which the European patent has effect. This provision defines the possible scope of UPC judgments but does not restrain the possibility to limit the revocation of European patents to certain UPC Member States.
 

1. A patent mediation and arbitration centre (‘the Centre’) is hereby established. It shall have its seats in Ljubljana and Lisbon.

2. The Centre shall provide facilities for mediation and arbitration of patent disputes falling within the scope of this Agreement. Article 82 shall apply mutatis mutandis to any settlement reached through the use of the facilities of the Centre, including through mediation. However, a patent may not be revoked or limited in mediation or arbitration proceedings.

3. The Centre shall establish Mediation and Arbitration Rules.

4. The Centre shall draw up a list of mediators and arbitrators to assist the parties in the settlement of their dispute.

Commentary

The Patent Mediation and Arbitration Center (PMAC) is established by Art. 35.1 UPCA. It is located in Ljubljana, Slovenia, and Lisbon, Portugal. It is an integral part of the UPCA and is expected to start its work in 2026. 

PMAC is a service for mediation and arbitration in all patent related disputes under the UPC, except decisions to revoke or limit a patent in mediation or arbitration proceedings (Art. 35.2 UPCA).

Related Rules

A) EU directive 2008/52/EC 

In mediation procedures, this directive on certain aspects in mediation on civil and commercial matters established to facilitate the amicable resolution of disputes provides basic rules. This directive applies according to Art. 2.1 to cross-border disputes in which at least one of the parties is domiciled or habitually resident in a Member State other than that of any other party. A cross-border dispute shall also be one in which judicial proceedings or arbitration following mediation between the parties are initiated in a Member State other than that in which the parties were domiciled or habitually resident (Art. 2.2). According to Art. 8 of EU directive 2008/52/EC, the parties shall not subsequently be prevented from initiating judicial proceedings.

The parties must have the right to seek a judicial judgement by a court. This is a general principle to be considered in contractual mediation and arbitration clauses and in agreements between the parties in the attempt to amicably settle the UPC dispute by aid of mediation or arbitration.

In CJEU Judgement of 14/06/2017 - C-75/16, ECLI:EU:C:2017:457, paras. 51, 54 + 56 it is stated “what is important is not whether the mediation system is mandatory or optional, but the fact that the parties’ right of access to the judicial system is maintained”. [...] “Nevertheless, it is settled case-law of the Court that fundamental rights do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (CJEU Judgment of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, para. 63 and the case-law cited).” [...] “Member States are free to choose the means they deem appropriate for the purposes of ensuring that access to the judicial system is not hindered. The fact, first, that the outcome of the ADR procedure is not binding on the parties and, secondly, the fact that the limitation periods do not expire during such a procedure are two means which, amongst others, would be appropriate for the purposes of achieving that objective.“ 

B) Rules of Operation of the PMAC (PMAC RoO)

The Administrative Commitee of the UPC established the Rules of Operation of the PMAC on 08/07/2022. This provides the organizational structure of the PMAC and general rules for the venue of mediation and arbitration (R. 4 PMAC RoO) and for the list of arbitrators and mediators (R. 14 PMAC RoO).

C) PMAC Rules of Procedure

PMAC shall establish Mediation and Arbitration Rules according to Art. 35 (3) UPCA and criteria and qualifications for arbitrators and mediators to be admitted to the list which have to be accepted by the administrative committee (R. 14.2 PMAC RoO). Draft PMAC rules have been published on 13/05/2025 for commentary.

Mediation Procedure

Mediation is an attempt to settle a dispute with guidance (mediation) of a mediator (see also R. 11.1 RoP). According to R. 11.1 RoP, the deadlines are suspended when mediation is initiated.

PMAC is, according to Art. 2 (5) PMAC Mediation Rules (PMAC RoM), the only body authorized to administer the mediation proceedings under the Mediation Rules of PMAC. PMAC is established under Art. 35 UPCA for mediation and arbitration of patent disputes falling within the scope of the UPCA. However, this does not exclude mediation or arbitration by other bodies, e.g. WIPO Arbitration and Mediation Center.

Language of Mediation

The language of the Mediation is agreed by the parties, or, in the absence of an agreement, shall be the language which PMAC considers is most closely related to the dispute (Art. 14 PMAC RoM).

The language of the mediation procedure can be different to the working languages of the Centre, which shall be English, French and German (Art. 6.1 PMAC RoO).

Length of Mediation procedure

Art. 15.4 PMAC RoM intends efficient Mediation within three months starting from the appointment of the Mediator. However, this period may be extended by the Centre with the agreement of the Mediator and all the parties. Disagreement of a party allows the party to step out of unsuccessful mediation and proceed with the UPC procedure. The maximum duration is limited in that PMAC may terminate the Proceedings on the expiry of a period of 12 months from the date of appointment of the Mediator, following consultation with the Mediator and the parties. This is a ground for termination according to Art. 17 .1 lit. b) PMAC RoM. The Mediator and the parties shall make all effort to reach an expeditious and efficient resolution of the dispute. They can agree on a meeting agenda and a time schedule.

Initiation or Continuation of parallel Proceedings in Mediation

Art. 21.3 PMAC RoM expects from the parties to expressly undertake not to initiate or actively continue any judicial, arbitral or similar proceedings to a dispute which is subject to the pending Proceedings at PMAC. This allows the parties to negotiate a settlement without pressure by injunction claims or invalidations or restrictions of the patent in dispute. However, suspension of parallel procedure is not mandatory. According to Art. 21.4 PMAC RoM, initiation or continuation of such parallel proceedings does not in itself constitute a waiver of the Mediation Agreement or a declaration of termination of the Mediation Proceedings.

In FRAND procedures, Art. 25 PMAC RoM allows continued parallel proceedings. In case only parts of a dispute are referred to Mediation, the parties may agree that any undertaking made under Article 20 PMAC RoM does not apply, and Proceedings concerning other parts of the dispute that are not subject to the pending Mediation at the Centre can continue. This may cause the defendant to accept a mediation agreement under pressure. The threat of an injunction may cause the implementer to raise royalties for a SEP portfolio including alleged SEPs that are, in reality, invalid, not essential, or not infringed. [R. Nazzini: Global licences under threat of injunctions: FRAND commitments, competition law, and jurisdictional battles, in: Journal of Antitrust Enforcement, 2023, 11, 427–453, 443 - https://doi.org/10.1093/jaenfo/jnad002]

Mediation in FRAND Disputes

Section 5 of PMAC RoM is directed to FRAND disputes, which are related to Standard Essential Patents (SEP), in particular an international SEP portfolio comprising more patents than the unitary patent in a UPC dispute, and which are linked to patent and antitrust law. A core dispute is the question of Fair Reasonable and Non-Discriminatory licence offer of the SEP owner and willingness of defendant to take a FRAND licence.

Thus, mediation is not limited to the unitary patent in dispute and directly related disputes. According to Art. 22 (2) PMAC RoM, the matters raised in mediation may include:

a) the SEP(s) in dispute or other patents concerned, such as one or several or a sample of patent(s) from the patent portfolio(s), in which case the parties may agree on the sampling criteria;
b) any patents that might be subject to cross-licensing;
c) the claims and defenses;
d) the conduct of the Proceedings in multiple stages;
e) any essentiality assessment to be conducted in accordance with the Centre’s rules on expert determination;
f)  the determination of selected licensing terms and conditions;
g) the determination on a temporary basis of any selected licensing terms pending determination of final licensing terms by a competent tribunal;
h) the determination of the scope of the royalty base and range;
i)  the methodology for calculating a FRAND royalty rate;
j)  any application for an order to a competent court, such as an application for an order to produce evidence or an order concerning confidentiality.

Arbitration Procedure

Arbitration is a procedure resulting in a decision of the board of arbitrators.

In CJEU, Judgement of 20/06/2022 - C-700/20, ECLI:EU:C:2022:488, para. 58, it is stated that “an arbitral award can, by means of a judgment entered in the terms of that award, produce effects in the context of Article 34.3 of Regulation No 44/2001 only if this does not infringe the right to an effective remedy guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union (see, to that effect, CJEU judgment of 25 May 2016, Meroni, C‑559/14, EU:C:2016:349, para. 44) and enables the objectives of the free movement of judgments in civil matters and of mutual trust in the administration of justice in the European Union to be achieved under conditions at least as favourable as those resulting from the application of Regulation No 44/2001 (see, by analogy, CJEU judgments of 4 May 2010, TNT Express Nederland, C‑533/08, EU:C:2010:243, para. 55, and of 19 December 2013, Nipponka Insurance, C‑452/12, EU:C:2013:858, para. 38).” The advocate general stated in his opinion of 16. January 2025 in CJEU case C-600/23, ECLI:EU:C:2025:24, para. 136 that “Article 19.1 TEU, read in conjunction with Article 267 TFEU and Article 47 of the Charter, does not preclude a rule of national law granting an arbitral award rebuttable probative value vis-à-vis third parties, where the review of conformity with EU law has been carried out by a court of a third country”.

In the UPC procedure, the arbitration decision provided in the interim procedure to explore the possibility of a settlement (Art. 52.2 UPCA) is not finally binding. The parties can proceed with the court procedure in case a party does not agree with the outcome. Therefore, a review of conformity with EU law by EU courts is guaranteed. 

Judicial enforcement of a mediation settlement and an arbitral award

The terms of any settlement or arbitral award by consent, reached using the facilities of PMAC, shall be confirmed by the UPC by decision (R. 11.2 RoP). This includes a term which obliges the patent owner to limit, surrender or agree to the revocation of a patent or not to assert it against the other party and/or third parties. A request for decision by the parties is required (R. 365.2 RoP). Art. 2.2 PMAC Mediation Rules reflects the rules set out in R. 11.2 and R. 365 RoP.

The UPC decision confirming the settlement can be enforced according to Art. 82 UPCA in any Contracting Member State. An order for the enforcement of a decision shall be appended to the decision by the Court. 

The EU Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussel 1 bis EU Regulation No 1215/2012 of 12 December 2012) does not apply to arbitration according to Art. 1.2 d) Brussels 1 bis EU Regulation. However, the UPC decision confirming the settlement is a judgment given by a court or tribunal of a Member State in the meaning of Art. 2 a) of the Brussels 1 bis EU Regulation. The decision shall be enforceable in any Contracting Member State according to Art. 82.1 UPCA and can be enforced without any declaration of enforceability being required (Art. 39 Brussels 1 bis EU Regulation).

1. The budget of the Court shall be financed by the Court's own financial revenues and, at least in the transitional period referred to in Article 83 as necessary, by contributions from the
Contracting Member States. The budget shall be balanced.

2. The Court's own financial revenues shall comprise court fees and other revenues.

3. Court fees shall be fixed by the Administrative Committee. They shall consist of a fixed fee, combined with a value-based fee above a pre-defined ceiling. The Court fees shall be fixed at
such a level as to ensure a right balance between the principle of fair access to justice, in particular for small and mediumsized enterprises, micro-entities, natural persons, non-profit organisations, universities and public research organisations and an adequate contribution of the parties for the costs incurred by the Court, recognising the economic benefits to
the parties involved, and the objective of a self-financing Court with balanced finances. The level of the Court fees shall be reviewed periodically by the Administrative Committee. Targeted support measures for small and medium-sized enterprises and micro entities may be considered.

4. If the Court is unable to balance its budget out of its own resources, the Contracting Member States shall remit to it special financial contributions.

1. The operating costs of the Court shall be covered by the budget of the Court, in accordance with the Statute. Contracting Member States setting up a local division shall provide the facilities necessary for that purpose. Contracting Member States sharing a regional division shall provide jointly the facilities necessary for that purpose. Contracting Member States hosting the central division, its sections or the Court of Appeal shall provide the facilities necessary for that purpose. During an initial transitional period of seven years starting from the date of the entry into force of this Agreement, the Contracting Member States concerned shall also provide administrative support staff, without prejudice to the Statute of that staff.

2. On the date of entry into force of this Agreement, the Contracting Member States shall provide the initial financial contributions necessary for the setting up of the Court.

3. During the initial transitional period of seven years, starting from the date of the entry into force of this Agreement, the contribution by each Contracting Member State having ratified or acceded to the Agreement before the entry into force thereof shall be calculated on the basis of the number of European patents having effect in the territory of that State on the date of entry into force of this Agreement and the number of European patents with respect to which actions for infringement or for revocation have been brought before the national courts of that State in the three years preceding entry into force of this Agreement. During the same initial transitional period of seven years, for Member States which ratify, or accede to, this Agreement after the entry into force thereof, the contributions shall be calculated on the basis of the number of European patents having effect in the territory of the ratifying or acceding Member State on the date of the ratification or accession and the number of European patents with respect to which actions for infringement or for revocation have been brought before the national courts of the ratifying or acceding Member State in the three years preceding the ratification or accession. 

4. After the end of the initial transitional period of seven years, by which the Court is expected to have become selffinancing, should contributions by the Contracting Member States become necessary, they shall be determined in accordance with the scale for the distribution of annual renewal fees for European patents with unitary effect applicable at the time the contribution becomes necessary.

The training framework for judges shall be financed by the budget of the Court.

The operating costs of the Centre shall be financed by the budget of the Court.

1. The Statute shall lay down the details of the organisation and functioning of the Court.

2. The Statute is annexed to this Agreement. The Statute may be amended by decision of the Administrative Committee, on the basis of a proposal of the Court or a proposal of a Contracting Member State after consultation with the Court. However, such amendments shall not contradict or alter this Agreement.

3. The Statute shall guarantee that the functioning of the Court is organised in the most efficient and cost-effective manner and shall ensure equitable access to justice.

1. The Rules of Procedure shall lay down the details of the proceedings before the Court. They shall comply with this Agreement and the Statute.

2. The Rules of Procedure shall be adopted by the Administrative Committee on the basis of broad consultations with stakeholders. The prior opinion of the European Commission on the compatibility of the Rules of Procedure with Union law shall be requested. The Rules of Procedure may be amended by a decision of the Administrative Committee, on the basis of a proposal from the Court and after consultation with the European Commission. However, such amendments shall not contradict or alter this Agreement or the Statute.

3. The Rules of Procedure shall guarantee that the decisions of the Court are of the highest quality and that proceedings are organised in the most efficient and cost effective manner. They
shall ensure a fair balance between the legitimate interests of all parties. They shall provide for the required level of discretion of judges without impairing the predictability of proceedings for
the parties.

1. The Court shall deal with litigation in ways which are proportionate to the importance and complexity thereof.

2. The Court shall ensure that the rules, procedures and remedies provided for in this Agreement and in the Statute are used in a fair and equitable manner and do not distort competition.

The Court shall actively manage the cases before it in accordance with the Rules of Procedure without impairing the freedom of the parties to determine the subject-matter of, and the supporting evidence for, their case.

Commentary

Acc. to the LD Milan  (order of 2 June 2025) the Court must grant a stay of proceedings if requested by all parties involved.

On a corresponding request by all parties a stay of proceedings can also be limited to certain patents in case that more than one patent is being litigated (Rule 295 (d) RoP). A pending EPO opposition or amendment proceedings would be a proper reason for such a joint request.
 

The Court shall make best use of electronic procedures, such as the electronic filing of submissions of the parties and stating of evidence in electronic form, as well as video conferencing, in
accordance with the Rules of Procedure.

The proceedings shall be open to the public unless the Court decides to make them confidential, to the extent necessary, in the interest of one of the parties or other affected persons, or in
the general interest of justice or public order.

Any natural or legal person, or any body equivalent to a legal person entitled to initiate proceedings in accordance with its national law, shall have the capacity to be a party to the
proceedings before the Court.

1. The patent proprietor shall be entitled to bring actions before the Court.

2. Unless the licensing agreement provides otherwise, the holder of an exclusive licence in respect of a patent shall be entitled to bring actions before the Court under the same circumstances as the patent proprietor, provided that the patent proprietor is given prior notice.

3. The holder of a non-exclusive licence shall not be entitled to bring actions before the Court, unless the patent proprietor is given prior notice and in so far as expressly permitted by the
licence agreement.

4. In actions brought by a licence holder, the patent proprietor shall be entitled to join the action before the Court.

5. The validity of a patent cannot be contested in an action for infringement brought by the holder of a licence where the patent proprietor does not take part in the proceedings. The
party in an action for infringement wanting to contest the validity of a patent shall have to bring actions against the patent proprietor.

6. Any other natural or legal person, or any body entitled to bring actions in accordance with its national law, who is concerned by a patent, may bring actions in accordance with
the Rules of Procedure. 

7. Any natural or legal person, or any body entitled to bring actions in accordance with its national law and who is affected by a decision of the European Patent Office in carrying out the
tasks referred to in Article 9 of Regulation (EU) No 1257/2012 is entitled to bring actions under Article 32(1)(i).

Commentary

Intervening party

The patent owner has the right to intervene in a dispute of the licensee of the patent in suit (Art. 47.4 UPCA). Further, Art. 47.6 UPCA grants the right to anybody entitled to bring actions in accordance with its national law, who is concerned by a patent, to bring actions in accordance with the RoP. This includes the intervention according to R. 313 to 317 RoP.

In UPC_CFI_440/2023 (Seoul Viosys Co. Ltd. vs. Laser Components and intervener Photon Wave Co. Ltd, LD Paris order on 24. July 2024), it was stated that the intervener, after its intervention has been declared admissible, must be "treated as a party" in the infringement action, in accordance with R. 315.4 RoP.  
 

1. Parties shall be represented by lawyers authorised to practise before a court of a Contracting Member State.

2. Parties may alternatively be represented by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to Article 134 of the EPC and who have appropriate qualifications such as a European Patent Litigation Certificate.

3. The requirements for qualifications pursuant to paragraph 2 shall be established by the Administrative Committee. A list of European Patent Attorneys entitled to represent parties before
the Court shall be kept by the Registrar.

4. Representatives of the parties may be assisted by patent attorneys, who shall be allowed to speak at hearings of the Court in accordance with the Rules of Procedure.

5. Representatives of the parties shall enjoy the rights and immunities necessary for the independent exercise of their duties, including the privilege from disclosure in proceedings before the Court in respect of communications between a representative and the party or any other person, under the conditions laid down in the Rules of Procedure, unless such privilege is expressly waived by the party concerned.

6. Representatives of the parties shall be obliged not to misrepresent cases or facts before the Court either knowingly or with good reasons to know.

7. Representation in accordance with paragraphs 1 and 2 of this Article shall not be required in proceedings under Article 32(1)(i).

Commentary

According to Art. 48 UPCA, parties shall be represented by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office and who have appropriate qualifications such as a European Patent Litigation Certificate or by lawyers authorised to practise before a court of a UPC Member State.

In UPC_CFI_195/2024 (Amycel LLC  v. a redacted Polish producer), the defendant was represented by European patent attorneys from Poland, which is not a Contracting Member State of the UPCA, and who had the appropriate qualifications to represent before the UPC. 

1. The language of proceedings before any local or regional division shall be an official European Union language which is the official language or one of the official languages of the
Contracting Member State hosting the relevant division, or the official language(s) designated by Contracting Member States sharing a regional division.

2. Notwithstanding paragraph 1, Contracting Member States may designate one or more of the official languages of the European Patent Office as the language of proceedings of
their local or regional division.

3. The parties may agree on the use of the language in which the patent was granted as the language of proceedings, subject to approval by the competent panel. If the panel does not
approve their choice, the parties may request that the case be referred to the central division.

4. With the agreement of the parties the competent panel may, on grounds of convenience and fairness, decide on the use of the language in which the patent was granted as the language
of proceedings.

5. At the request of one of the parties and after having heard the other parties and the competent panel, the President of the Court of First Instance may, on grounds of fairness and taking
into account all relevant circumstances, including the position of parties, in particular the position of the defendant, decide on the use of the language in which the patent was granted as
language of proceedings. In this case the President of the Court of First Instance shall assess the need for specific translation and interpretation arrangements.

6. The language of proceedings at the central division shall be the language in which the patent concerned was granted.

1. The language of proceedings before the Court of Appeal shall be the language of proceedings before the Court of First Instance.

2. Notwithstanding paragraph 1 the parties may agree on the use of the language in which the patent was granted as the language of proceedings.

3. In exceptional cases and to the extent deemed appropriate, the Court of Appeal may decide on another official language of a Contracting Member State as the language of proceedings for
the whole or part of the proceedings, subject to agreement by the parties.

1. Any panel of the Court of First Instance and the Court of Appeal may, to the extent deemed appropriate, dispense with translation requirements.

2. At the request of one of the parties, and to the extent deemed appropriate, any division of the Court of First Instance and the Court of Appeal shall provide interpretation facilities to
assist the parties concerned at oral proceedings.

3. Notwithstanding Article 49(6), in cases where an action for infringement is brought before the central division, a defendant having its residence, principal place of business or
place of business in a Member State shall have the right to obtain, upon request, translations of relevant documents in the language of the Member State of residence, principal place
of business or, in the absence of residence or principal place of business, place of business, in the following circumstances:

(a) jurisdiction is entrusted to the central division in accordance with Article 33(1) third or fourth subparagraph, and

(b) the language of proceedings at the central division is a language which is not an official language of the Member State where the defendant has its residence, principal place of business or, in the absence of residence or principal place of business, place of business, and

(c) the defendant does not have proper knowledge of the language of the proceedings.

1. The proceedings before the Court shall consist of a written, an interim and an oral procedure, in accordance with the Rules of Procedure. All procedures shall be organized in a flexible and balanced manner.

2. In the interim procedure, after the written procedure and if appropriate, the judge acting as Rapporteur, subject to a mandate of the full panel, shall be responsible for convening
an interim hearing. That judge shall in particular explore with the parties the possibility for a settlement, including through mediation, and/or arbitration, by using the facilities of the Centre referred to in Article 35.

3. The oral procedure shall give parties the opportunity to explain properly their arguments. The Court may, with the agreement of the parties, dispense with the oral hearing.

1. In proceedings before the Court, the means of giving or obtaining evidence shall include in particular the following:

(a) hearing the parties; 

(b) requests for information;

(c) production of documents;

(d) hearing witnesses;

(e) opinions by experts;

(f) inspection;

(g) comparative tests or experiments;

(h) sworn statements in writing (affidavits).

2. The Rules of Procedure shall govern the procedure for taking such evidence. Questioning of witnesses and experts shall be under the control of the Court and be limited to what is necessary.

Without prejudice to Article 24(2) and (3), the burden of the proof of facts shall be on the party relying on those facts.

1. Without prejudice to Article 24(2) and (3), if the subjectmatter of a patent is a process for obtaining a new product, the identical product when produced without the consent of the
patent proprietor shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process.

2. The principle set out in paragraph 1 shall also apply where there is a substantial likelihood that the identical product was made by the patented process and the patent proprietor has been unable, despite reasonable efforts, to determine the process actually used for such identical product.

3. In the adduction of proof to the contrary, the legitimate interests of the defendant in protecting its manufacturing and trade secrets shall be taken into account.

1. The Court may impose such measures, procedures and remedies as are laid down in this Agreement and may make its orders subject to conditions, in accordance with the Rules of
Procedure.

2. The Court shall take due account of the interest of the parties and shall, before making an order, give any party the opportunity to be heard, unless this is incompatible with the effective enforcement of such order.

1. Without prejudice to the possibility for the parties to produce expert evidence, the Court may at any time appoint court experts in order to provide expertise for specific aspects of
the case. The Court shall provide such expert with all information necessary for the provision of the expert advice. 

2. To this end, an indicative list of experts shall be drawn up by the Court in accordance with the Rules of Procedure. That list shall be kept by the Registrar.

3. The court experts shall guarantee independence and impartiality. Rules governing conflicts of interest applicable to judges set out in Article 7 of the Statute shall by analogy apply
to court experts.

4. Expert advice given to the Court by court experts shall be made available to the parties which shall have the possibility to comment on it.

To protect the trade secrets, personal data or other confidential information of a party to the proceedings or of a third party, or to prevent an abuse of evidence, the Court may order that the
collection and use of evidence in proceedings before it be restricted or prohibited or that access to such evidence be restricted to specific persons.

1. At the request of a party which has presented reasonably available evidence sufficient to support its claims and has, in substantiating those claims, specified evidence which lies in the
control of the opposing party or a third party, the Court may order the opposing party or a third party to present such evidence, subject to the protection of confidential information. Such order shall not result in an obligation of self-incrimination.

2. At the request of a party the Court may order, under the same conditions as specified in paragraph 1, the communication of banking, financial or commercial documents under the control of the opposing party, subject to the protection of confidential information.

1. At the request of the applicant which has presented reasonably available evidence to support the claim that the patent has been infringed or is about to be infringed the Court may, even before the commencement of proceedings on the merits of the case, order prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement, subject to the protection of confidential information.

2. Such measures may include the detailed description, with or without the taking of samples, or the physical seizure of the infringing products, and, in appropriate cases, the materials and
implements used in the production and/or distribution of those products and the documents relating thereto.

3. The Court may, even before the commencement of proceedings on the merits of the case, at the request of the applicant who has presented evidence to support the claim that the patent has been infringed or is about to be infringed, order the inspection of premises. Such inspection of premises shall be conducted by a person appointed by the Court in accordance with the Rules of Procedure.

4. At the inspection of the premises the applicant shall not be present itself but may be represented by an independent professional practitioner whose name has to be specified in the Court's order.

5. Measures shall be ordered, if necessary without the other party having been heard, in particular where any delay is likely to cause irreparable harm to the proprietor of the patent, or where there is a demonstrable risk of evidence being destroyed. 

6. Where measures to preserve evidence or inspect premises are ordered without the other party in the case having been heard, the parties affected shall be given notice, without delay and at the latest immediately after the execution of the measures. A review, including a right to be heard, shall take place upon request of the parties affected with a view to deciding, within a  reasonable period after the notification of the measures, whether the measures are to be modified, revoked or confirmed.

7. The measures to preserve evidence may be subject to the lodging by the applicant of adequate security or an equivalent assurance intended to ensure compensation for any prejudice
suffered by the defendant as provided for in paragraph 9. 

8. The Court shall ensure that the measures to preserve evidence are revoked or otherwise cease to have effect, at the defendant's request, without prejudice to the damages which may be claimed, if the applicant does not bring, within a period not exceeding 31 calendar days or 20 working days, whichever is the longer, action leading to a decision on the merits of the case before the Court.

9. Where the measures to preserve evidence are revoked, or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of the patent, the Court may order the applicant, at the defendant's request, to provide the defendant with appropriate compensation for any damage suffered as a result of those measures.

Commentary

According to an order of the LD Munich  (Nanoval v. ALD Vacuum, order of 28 May 2025), a protective letter only helps against an order to preserve evidence and inspect premises under Art. 60 UPCA without hearing the other party if it explains how the allegedly infringing object is designed and how it differs specifically from the object placed under patent protection.

The same applies to the response to a request for authorization. If this response only contains the assertion that the challenged subject matter differs fundamentally from the subject matter protected by the patent, without further details being provided as to how the allegedly patent-infringing subject matter differs specifically from the subject matter protected by the patent, the alleged patent infringer lacks the required willingness to cooperate. This is because, in the opinion of the local division, the patent infringer has shown with behavior such as that described above that it does not wish to cooperate voluntarily in clarifying the facts of the case.

And based on this, it is not far-fetched to assume that once the alleged patent infringer has prior knowledge of the planned implementation of evidence preservation measures, it is no longer possible to fully preserve evidence. In this case, the patent proprietor would suffer irreparable damage within the meaning of Art. 60 (5) UPCA with the consequence that the measures to preserve evidence can also be decided without prior hearing of the alleged patent infringer.

1. At the request of the applicant which has presented reasonably available evidence to support the claim that the patent has been infringed or is about to be infringed the Court may, even before the commencement of proceedings on the merits of the case, order a party not to remove from its jurisdiction any assets located therein, or not to deal in any assets, whether located within its jurisdiction or not.

2. Article 60(5) to (9) shall apply by analogy to the measures referred to in this Article.

1. The Court may, by way of order, grant injunctions against an alleged infringer or against an intermediary whose services are used by the alleged infringer, intended to prevent any imminent infringement, to prohibit, on a provisional basis and subject, where appropriate, to a recurring penalty payment, the continuation of the alleged infringement or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the right holder.

2. The Court shall have the discretion to weigh up the interests of the parties and in particular to take into account the potential harm for either of the parties resulting from the granting or the refusal of the injunction. 

3. The Court may also order the seizure or delivery up of the products suspected of infringing a patent so as to prevent their entry into, or movement, within the channels of commerce. If
the applicant demonstrates circumstances likely to endanger the recovery of damages, the Court may order the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of the bank accounts and of other assets of the alleged infringer.

4. The Court may, in respect of the measures referred to in paragraphs 1 and 3, require the applicant to provide any reasonable evidence in order to satisfy itself with a sufficient degree of certainty that the applicant is the right holder and that the applicant's right is being infringed, or that such infringement is imminent.

5. Article 60(5) to (9) shall apply by analogy to the measures referred to in this Article.

Commentary

Necessity and weighing of interests 

An applicant for provisional measures must provide reasons why such measures are necessary, as well as the facts and evidence relied on in support of the Application, including evidence to support the claim that provisional measures are necessary (R. 206.2(c-d) RoP). The decision of the Court will depend on the exercise of its discretion weighing up the interests of the parties. Particular emphasis is placed upon the weighing of potential harm for either of the parties resulting from the granting or the refusal of the injunction (Art. 62(2) UPCA and R. 211.3 RoP).

When assessing the necessity of interests, the court should not only consider generic general factors but take into account the specific market situation at hand. For example, in UPC_CoA_523/2024 (Sumi Agro Europe Limited v. Syngenta Limited, order of 3 March 2025) the court of appeal ruled that a move from a market situation where only one ready-made product is available, to one where there are two such competing products, can be expected to lead not just to price pressure but to a permanent price erosion, as put forward by Syngenta (the Applicant). A price drop such as the one described can consequently be expected to prove detrimental, not just momentarily but long-run, for the profitability of Elumis, even if a permanent injunction would eventually be obtained after proceedings on the merits. Given these economic incentives, the prospect of a permanent injunction following proceedings on the merits cannot be expected to be sufficient to prevent the continuation of the infringement (R. 206.2(c) RoP). On the contrary, a provisional injunction is needed.

Furthermore, Art. 62(1) UPCA does not discriminate between different kind of infringing actions, which are to be preempted or stopped in their tracks. The term infringement is to be understood here in relation to Art. 25 UPCA, which confers on the patent proprietor the right to prevent not just the placing on the market of a product which is the subject-matter of the patent, but also acts of infringement which typically precede or supplement actual sales, namely making, offering, or importing or storing the infringing product for those purposes.

Urgency   

Apart from the necessity, the court further reviews the factor of urgency, when deciding over the prospects of provisional measures. In this regard, it is essential that the applicant files essential documents in accordance with the urgency alleged. 

According to UPC_CFI_463/2023 (LD Düsseldorf, order of 30 April 2024, 10x Genomics, Inc. v. Curio Bioscience Inc.), pursuant to Rule 213.2 RoP, the Court may, as part of its decision-making process, require the Applicant to submit all reasonably available evidence to ensure that it can be sufficiently certain that the Applicant is entitled to initiate proceedings under Art. 47 UPCA, that the patent in question is valid and that its right is being infringed or threatened with infringement. In urgent proceedings, the Applicant must typically respond to such an order within a short period of time, which requires appropriate preparation of the proceedings. 

The Applicant therefore only needs to apply to the Court if it has reliable knowledge of all the facts that make legal action in the proceedings for provisional measures promising and if they can substantiate these facts. The Applicant may prepare for any possible procedural situation that may arise, based on the circumstances, in such a way that it can present the requested information and documents to the Court upon such an order and successfully rebut the arguments of the Defendants’ side. In principle, the Applicant cannot be instructed to carry out any necessary subsequent investigations only during ongoing proceedings and if necessary to obtain the required documents after the fact. On the other hand, the Applicant must not delay proceedings unnecessarily. As soon as it has knowledge of the alleged infringement, it must investigate it, take the necessary measures to clarify it and obtain the documents required to support its claims. In doing so, it must diligently initiate and complete the required steps at each stage (UPC_CFI_452/2023 (LD Düsseldorf), Order of 9 April 2024, GRUR-RS 2024, 7207, para. 128; UPC_CFI_151/2024 (LD Hamburg), Order of 3 June 2024 – Ballinno v. UEFA). On this basis, the waiting period within the meaning of R. 211.4 RoP is to be measured from the date on which the Applicant is or should have been aware of the infringement which would have enabled him to file a promising Application for provisional measures in accordance with R. 206.2 RoP. Whether a delay is unreasonable within the meaning of R. 211.4 RoP depends on the circumstances of the individual case (UPC_CoA_182/2024, Order of 25 September 2024, paras. 228 and 232 – Mammut Sports v. Ortovox Sportartikel). Insofar as a period of one month was mentioned in previous orders (UPC_CFI_463/2023 (LD Düsseldorf), Order of 30 April 2024, ORD_598272/2023, 10x Genomics v. Curio Bioscience; see also UPC_CFI_151/2024 (LD Hamburg), Order of 3 June 2024 – Ballinno v. UEFA), this is not to be understood as a fixed deadline. Rather, it depends on the circumstances of the individual case. Ultimately, the question is always whether the Applicant’s conduct as a whole justifies the conclusion that the enforcement of its rights is not urgent.”

In weighing the interests, the Court will take into account any unreasonable delay in applying for provisional measures under R. 211.4 RoP in conjunction with R. 209.1 (b) RoP. This is based on the fact that the patentee, by acting in such a way, shows that the enforcement of its rights is no longer urgent for him. In such a situation, there is no need to order provisional measures. (cf. UPC_CFI_347/2024)

However, the temporal urgency required for the order of provisional measures is lacking only if the infringed party has been so negligent and hesitant in pursuing its claims that, from an objective point of view, it must be concluded that the infringed party has no interest in the prompt enforcement of its rights and that it is therefore not appropriate to order provisional measures (cf. also UPC_CFI 2/2023 (LD Munich), Order of 19 September 2023, 1513, 1524 – Nachweisverfahren; UPC_CFI_452/2024 (LD Düsseldorf), Order of 9 April 2024, p. 27, GRUR-RS 2024, 7207, para. 126; UPC_CFI_151/2024 (LD Hamburg), Order of 3 June 2024 – Ballinno v. UEFA). (cf. UPC_CFI_347/2024).

Territorial Scope

According to Art. 34 UPCA, decisions of the Court shall cover, in the case of a European patent, the territory of those CMS for which the European patent has effect. This means that injunctions, as a rule, will cover all member states. A restriction would require the presence of certain circumstances, such as when a claimant has restricted the territorial scope of its action (Art. 76(1) UPCA)

However, if a new CMS joins, the decision will be extended to this state, when a corresponding request is filed, it is set out in Art. 34 UPCA that decisions of the Court shall cover the territory of those CMS for which the European patent has effect. In this regard the court of appeal has ruled that this provision is visible to all actual and potential parties to proceedings before the UPC, and so is the fact that several EU Member States have signed the UPCA but not yet ratified and acceded to the UPCA. There are no transitional rules connected to Art. 34 UPCA. When a UPC Signatory State ratifies and accedes, the application of Art. 34 UPCA should be automatic and not subject to limitations, from the day of accession.

According to R. 222.2 RoP requests which have not been submitted by a party during proceedings before the Court of First Instance may therefore be regarded by the Court of Appeal. From the wording (“party”) it is clear that R. 222.2 RoP not only applies to requests of the Appellant or Cross-appellant. In view of the general rule in Art. 34 UPCA, the Court may therefore exercise its discretion to allow the application with regard to further CMS in the appeal proceedings.

1. Where a decision is taken finding an infringement of a patent, the Court may grant an injunction against the infringer aimed at prohibiting the continuation of the infringement. The Court may also grant such injunction against an intermediary whose services are being used by a third party to infringe a patent.

2. Where appropriate, non-compliance with the injunction referred to in paragraph 1 shall be subject to a recurring penalty payment payable to the Court.

1. Without prejudice to any damages due to the injured party by reason of the infringement, and without compensation of any sort, the Court may order, at the request of the applicant, that appropriate measures be taken with regard to products found to be infringing a patent and, in appropriate cases, with regard to materials and implements principally used in the creation or manufacture of those products.

2. Such measures shall include: 

(a) a declaration of infringement;

(b) recalling the products from the channels of commerce;

(c) depriving the product of its infringing property;

(d) definitively removing the products from the channels of commerce; or

(e) the destruction of the products and/or of the materials and implements concerned.

3. The Court shall order that those measures be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.

4. In considering a request for corrective measures pursuant to this Article, the Court shall take into account the need for proportionality between the seriousness of the infringement and
the remedies to be ordered, the willingness of the infringer to convert the materials into a non-infringing state, as well as the interests of third parties.

1. The Court shall decide on the validity of a patent on the basis of an action for revocation or a counterclaim for revocation.

2. The Court may revoke a patent, either entirely or partly, only on the grounds referred to in Articles 138(1) and 139(2) of the EPC.

3. Without prejudice to Article 138(3) of the EPC, if the grounds for revocation affect the patent only in part, the patent shall be limited by a corresponding amendment of the claims and revoked in part.

4. To the extent that a patent has been revoked it shall be deemed not to have had, from the outset, the effects specified in Articles 64 and 67 of the EPC.

5. Where the Court, in a final decision, revokes a patent, either entirely or partly, it shall send a copy of the decision to the European Patent Office and, with respect to a European patent, to the national patent office of any Contracting Member State concerned.

Commentary

1. Added matter

In UPC_CFI_163/2024 – Decision of 23 May 2025, the counter-claimant argued an inadmissible intermediate generalization. However, the Paris Local Division held that the skilled person would not consider the cited features inextricably linked and would directly and unambiguously derive the amended subject-matter from the application as filed. The skilled person would understand that in describing an embodiment, features may be used to illustrate its working that are not necessarily an essential part of the invention. The added matter challenge failed.

In UPC_CFI_198/2024 (Aylo Premium v. DISH Technologies, decision of 28 May 2025), the Central Division in Paris held that the parent application does not provide support for claiming “requesting the streamlets (212) of the highest quality one of the copies (204, 206, 208) determined sustainable at that time” as stated in feature 1.7. [emphasis added]. By introducing the term “highest” in the claim as granted, this feature includes embodiments in which direct “jumps” to the highest quality are possible and introduce an inadmissible generalization. Indeed, this implies assessing whether, at a certain time, several higher qualities would be sustainable, a determination that neither the flow diagram of Figure 7 nor the description of the parent application foresees or suggests.

2. Novelty

In UPC_CFI_505/2024 – Decision of 13 May 2025, the Düsseldorf Local Division stated in the 1st headnote that in the case of a second medical use claim, a substance or composition within the meaning of Art. 54(4) EPC is used for any specific use which is not comprised in the state of the art. Such a therapeutic use can be a new indication, e.g. a disease not yet treated by the claimed substance, or an indication for a new group of patients.

3. Inventive step

In UPC_CFI_359/2023 (Fujifilm Corporation vs. Kodak GmbH et al., decision of 2 April 2025), it was stated that the suitable starting point for the assessment of inventive step is not limited to the closest prior art. Since there may be several ways to arrive at a conclusion, there may accordingly exist several starting points. The decisive point is rather whether such starting point constitutes a suitable starting point which the relevant person skilled in the art would take into account, if confronted with the problem to be solved (cf. Central Division Munich Section, decision of 16 July 2024, UPC_CFI_14/2023 mn. 8.6; Central Division Paris Seat, decision of 21 January 2025, UPC_CFI_311/2023 mn. 57). In this regard, on a regular basis, a solution as claimed is obvious, if, starting from a suitable starting point in the prior art, the skilled person would be motivated (i.e., have an incentive) to consider the solution and implement it as a next step (cf. Central Division Munich Section, decision of 16 July 2024, UPC_CFI_14/2023 mn. 8.6).

In UPC_CFI_505/2024 – Decision of 13 May 2025 (2nd medical use case), the Düsseldorf Local Division stated in the 4th headnote that in terms of inventive step, the subject matter of the claim may be obvious if the skilled person would have been motivated to implement it as the next step in the view of the problem. A motivation to implement may be absent or negated if the skilled person is faced with many uncertainties or expected difficulties. If there is no motivation at all or a negated motivation, the subject matter of the claim is not obvious and involves an inventive step.

In UPC_CFI_163/2024 – Decision of 23 May 2025, the Paris Local found that D1 disclosed all but two of the claimed features: the brush rotating means cover (features 1.6.2 and 1.6.3). The technical contribution of these features was limited to shielding and supporting the gear mechanism. D2 disclosed a structurally similar cover with the same function. The Court found no technical prejudice or unexpected effect that would dissuade the skilled person from combining these teachings. Inventive step was denied.

1. In actions brought under Article 32(1)(i), the Court may exercise any power entrusted on the European Patent Office in accordance with Article 9 of Regulation (EU) No 1257/2012,
including the rectification of the Register for unitary patent protection.

2. In actions brought under Article 32(1)(i) the parties shall, by way of derogation from Article 69, bear their own costs.

1. The Court may, in response to a justified and proportionate request of the applicant and in accordance with the Rules of Procedure, order an infringer to inform the applicant of:

(a) the origin and distribution channels of the infringing products or processes;

(b) the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the infringing products; and

(c) the identity of any third person involved in the production or distribution of the infringing products or in the use of the infringing process.

2. The Court may, in accordance with the Rules of Procedure, also order any third party who:

(a) was found in the possession of the infringing products on a commercial scale or to be using an infringing process on a commercial scale;

(b) was found to be providing on a commercial scale services used in infringing activities; or

(c) was indicated by the person referred to in points (a) or (b) as being involved in the production, manufacture or distribution of the infringing products or processes or in the provision of the services, to provide the applicant with the information referred to in paragraph 1.

Commentary

Form of the requested information according to Art. 67 (1) UPCA:

According to the Court of Appeal, (UPC_CoA_845/2024 (Order of the Court of Appeal Belkin v. Philips of 30 May 2025), where neither the operative part of the judgment nor the claimant’s application – as in the present case – specifies whether the information is to be provided in paper or electronic form, the information may, in principle, be provided in either format.

Further, in the case of an obligation to communicate information, it is evident that the provision of such information does not have to be provided on the day the notice of intention to enforce is served. It is obvious that the provision of information requires a certain amount of time. For reasons of proportionality (cf. Art. 67(1) UPCA), the party obliged to communicate the information must be granted a reasonable period of time, taking into account the specific circumstances of the individual case. In determining the length of this period, particular consideration must be given, amongst other, to the scope of the information required to be provided, the time period to which the disclosure relates, and the resources available to the obliged party.  Since an order pursuant to Art. 67(1) UPCA requires an application that complies with the principle of proportionality, the time period – which begins upon notification pursuant to R. 118.8, first sentence, RoP – must be included in the claimant’s corresponding application. The time period must at any rate be determined in the decision on the merits. The purpose is to ensure that the defendant is properly informed about the period of time available to it. 

If no time period is specified in the final decision, it is the responsibility of the claimant to set a time period for the provision of information when notifying the defendant of the intention to enforce the decision. 

A time period that is set too short by the claimant triggers the commencement of a reasonable period, to be established by the Court.

The Court of Appeal considers – dependent on the resources of the defendant – a period of 6 to 8 weeks to be reasonable. Such a period of time should be borne  in mind when setting a proper time period.

Although Art. 67(1) UPCA does not require the provision of information of manufacture prices Art. 67 (1) UPCA is to be interpreted in such a way that the Court may order an infringer to inform the claimant of manufacturer prices. Since all three language versions require disclosure of the products that were received or ordered (“erhalten oder bestellten” / “reçues ou commandées”), it is evident that the obligation to provide information does not refer solely to the prices received by the defendant, but also to the prices that third parties received for supplying the defendant.

The purpose of the obligation to provide information also supports the conclusion that manufacturer prices are included in Art. 67(1) UPCA. It is intended to enable the patent proprietor to calculate its damages. Since the infringer’s unfair profits is a factor in determining the amount of the damages claim (cf. Art. 13(1)(a) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2024 on the enforcement of intellectual property rights, hereinafter referred to as the "Enforcement Directive," and Art. 68(3)(a) UPCA), the patent proprietor also requires information on the manufacturer prices in order to calculate such profits.

1. The Court shall, at the request of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in a patent infringing activity, to pay the injured party damages appropriate to the harm actually suffered by that party as a result of the infringement.

2. The injured party shall, to the extent possible, be placed in the position it would have been in if no infringement had taken place. The infringer shall not benefit from the infringement.
However, damages shall not be punitive.

3. When the Court sets the damages: 

(a) it shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the injured party by the infringement; or

(b) as an alternative to point (a), it may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of the royalties or fees which would have been due if the infringer had requested authorisation to use the patent in question.

4. Where the infringer did not knowingly, or with reasonable grounds to know, engage in the infringing activity, the Court may order the recovery of profits or the payment of compensation.

1. Reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity requires otherwise, up to a ceiling set in accordance with the Rules of Procedure.

2. Where a party succeeds only in part or in exceptional circumstances, the Court may order that costs be apportioned equitably or that the parties bear their own costs.

3. A party should bear any unnecessary costs it has caused the Court or another party.

4. At the request of the defendant, the Court may order the applicant to provide adequate security for the legal costs and other expenses incurred by the defendant which the applicant may be liable to bear, in particular in the cases referred to in Articles 59 to 62.

Commentary

According to UPC_CFI_16/2024, UPC_CFI_121/2025 andUPC_CFI_124/2025 (Ortovox Sportartikel GmbH v. Mammut Sports , LD Düsseldorf of 22 April 2025) the following applies:

1. If several attorneys-at-law or patent attorneys are working for one party, the allocation of tasks to several attorneys-at-law and patent attorneys is harmless for the reimbursability of costs as long as no additional costs are generated, but only the tasks to be performed and thus the costs incurred are divided between different attorneys-at-law and patent attorneys. 

2. Even if the settlement of the costs of the provisional , resp. interim proceedings is usually reserved for a uniform cost assessment procedure following the main proceedings, the costs incurred in the provisional proceedings are separately reimbursed. The upper limits of the recoverable costs for the proceedings for provisional measures and for the main proceedings must therefore be determined separately.

3. Concerning the reimbursable amount, see R.151 (d) and R. 152.

In UPC_CFI_249/2023 (Meril GmbH v. Edwards Lifesciences Corporation, order of 19 December 2023, the Local Division Munich found that according to Article 69 (1) UPCA, costs are generally borne by the unsuccessful party, up to a limit set by the procedural rules, unless equity reasons dictate otherwise. In case of partial success or exceptional circumstances, the court may, under Article 69 (1) UPCA, order costs to be distributed equitably or each party to bear their own costs. If a party causes unnecessary costs, they may be required to bear them under Article 69 (1) UPCA. The resolution and disposal in this case resulted from exceptional circumstances - the resolution of the dispute due to the respondents' issuance of the cease and desist declaration on September 25, 2023, and its acceptance by the applicant. Under these circumstances, it would be inequitable to impose costs on the applicant. Regardless of the admissibility and merits of the applicant's request for interim measures at the time of resolution, the respondents could have issued the declaration much earlier, thereby avoiding unnecessary costs incurred by the applicant.

In UPC_CFI_292/2023 (SES-imgotag SA v. Hanshow Technology et al., order of 20 December 2023), the Local Division Munich found that as the unsuccessful party, the applicant of an unsuccessful request for interim measures must generally also bear the costs incurred by the respondent due to the filing of a protective letter.

In UPC_CoA_290/2024 (Stäubli Tec-Systems GmbH v. Respondents, order of 26 March 2025), the Court of Appeal stated that an exception to the general rule of Art. 69 (1) UPCA that the unsuccessful party must bear the reasonable and proportionate legal costs and other expenses incurred by the successful party may apply if a claimant files a revocation action without the patent holder having given rise to the action and the patent holder surrenders the patent immediately at the beginning of the proceedings. For this rule to apply, it is generally necessary that within the time limit for filing a defence to revocation not only the patent holder surrenders the patent but within the same time period also files a request for revocation of the patent pursuant to Art. 105a EPC with the European Patent Office and pays the required fee within that time period.

1. Parties to proceedings before the Court shall pay court fees.

2. Court fees shall be paid in advance, unless the Rules of Procedure provide otherwise. Any party which has not paid a prescribed court fee may be excluded from further participation in the proceedings.

1. A party who is a natural person and who is unable to meet the costs of the proceedings, either wholly or in part, may at any time apply for legal aid. The conditions for granting of legal aid shall be laid down in the Rules of Procedure.

2. The Court shall decide whether legal aid should be granted in full or in part, or whether it should be refused, in accordance with the Rules of Procedure.

3. On a proposal from the Court, the Administrative Committee shall set the level of legal aid and the rules on bearing the costs thereof.

Without prejudice to Article 24(2) and (3), actions relating to all forms of financial compensation may not be brought more than five years after the date on which the applicant became aware, or had reasonable grounds to become aware, of the last fact justifying the action.

1. An appeal against a decision of the Court of First Instance may be brought before the Court of Appeal by any party which has been unsuccessful, in whole or in part, in its submissions,
within two months of the date of the notification of the decision.

2. An appeal against an order of the Court of First Instance may be brought before the Court of Appeal by any party which has been unsuccessful, in whole or in part, in its submissions:

(a) for the orders referred to in Articles 49(5), 59 to 62 and 67 within 15 calendar days of the notification of the order to the applicant;

(b) for other orders than the orders referred to in point (a): (i) together with the appeal against the decision, or (ii) where the Court grants leave to appeal, within 15 days of the notification of the Court's decision to that effect.

3. The appeal against a decision or an order of the Court of First Instance may be based on points of law and matters of fact.

4. New facts and new evidence may only be introduced in accordance with the Rules of Procedure and where the submission thereof by the party concerned could not reasonably have been expected during proceedings before the Court of First Instance.

1. An appeal shall not have suspensive effect unless the Court of Appeal decides otherwise at the motivated request of one of the parties. The Rules of Procedure shall guarantee that such a decision is taken without delay.

2. Notwithstanding paragraph 1, an appeal against a decision on actions or counterclaims for revocation and on actions based on Article 32(1)(i) shall always have suspensive effect.

3. An appeal against an order referred to in Articles 49((5), 59 to 62 or 67 shall not prevent the continuation of the main proceedings. However, the Court of First Instance shall not give a decision in the main proceedings before the decision of the Court of Appeal concerning an appealed order has been given.

Commentary

According to the Court of Appeal (UPC_CoA_365/2025  (order of 21 May 2025, Knaus Tabbert v. Yellow Spehre et al)):

Pursuant to Art. 74(1) UPCA, an appeal has no suspensive effect unless the Court of Appeal decides otherwise at the reasoned request of a party. 

The Court of Appeal can therefore only grant the request if the circumstances of the case justify an exception to the principle that the appeal has no suspensive effect. 

In this context, it must be examined whether the appellant's interest in maintaining the status quo until the decision on the appeal has been made outweighs the interest of the defendant  (UPC Court of Appeal, order of 18 January 2024, UPC_CoA_4/2024, App_100/2024 Meril/Edwards, p. 5; order of 19 June 2024, UPC_CoA_301/2024, App_35055/2024, para. 7; Order of 19 August 2024, UPC_CoA_388/2024, APL_39884/2024, Sibio et al/Abbott, para. 6).

The order of suspensive effect may be considered in particular if the order, against which the appeal is directed is manifestly erroneous (UPC Court of Appeal, order of 18 January 2024, UPC_CoA_4/2024, App_100/2024, Meril/Edwards, p. 5; order of January 2024, UPC_CoA_4/2024, App_100/2024, Meril/Edwards, p. 5; order of 19 August 2024, UPC_CoA_388/2024, APL_ 39884/2024, Sibio et al/Abbott, para. 7) or the enforcement from the contested of the contested decision would render the appeal largely irrelevant (UPC Court of Appeal, order of 6 November 2023, UPC_CoA_407/2023, App_584588/2023 Ocado/third party; order of 2 May 2024, UPC_CoA_177/2024, APL_20002/2024, Progress Machinery & Automation, para. 10).

Furthermore, the violation of fundamental procedural rights such as the principle of the right to be heard may also justify the ordering of suspensive effect if it cannot be ruled out from the outset that the court would have come to a different conclusion without the result without the violation (UPC Court of Appeal, order of 29 October 2024, UPC_CoA_549/2024, App_53031/2024, Philips/Belkin, para 61).

1. If an appeal pursuant to Article 73 is well-founded, the Court of Appeal shall revoke the decision of the Court of First Instance and give a final decision. The Court of Appeal may in exceptional cases and in accordance with the Rules of Procedure refer the case back to the Court of First Instance for decision.

2. Where a case is referred back to the Court of First Instance pursuant to paragraph 1, the Court of First Instance shall be bound by the decision of the Court of Appeal on points of law.

1. The Court shall decide in accordance with the requests submitted by the parties and shall not award more than is requested.

2. Decisions on the merits may only be based on grounds, facts and evidence, which were submitted by the parties or introduced into the procedure by an order of the Court and on which the parties have had an opportunity to present their comments.

3. The Court shall evaluate evidence freely and independently.

Commentary

In UPC_CFI_359/2023 (Fujifilm Corporation vs. Kodak GmbH et al., decision of 2 April 2025). it was stated that in accordance with Art. 76(1) UPCA, the court shall decide in accordance with the requests submitted by the parties and shall not award more than is requested. Art. 65 (3) UPCA does not give a proprietor of a patent the opportunity to partially fend off a (counter-)claim for revocation without filing a proper request specifying the extent to which the patent-in-dispute shall be maintained in part (deviating opinion with regard to subclaims: Central Division, Paris seat, decision of 22 January 2025, UPC_CFI_310/2023, GRUR-RS 2025, 637 mn. 138). 

In UPC_CFI_198/2024 (Aylo Premium v. DISH Technologies, decision of 28 May 2025), the Central Division in Paris explained in the Headnote that the Court can, if requested, limit the scope of revocation of a European (bundle) patent to national parts of a European Patent validated in individual UPC Member States (ne ultra petita). Anyone is free to bring nullity proceedings in the remaining UPC Member States after the Unified Patent Court has declared the European patent invalid for certain national parts. As a general rule, according to Art. 34 UPCA, decisions of the Court shall cover, in the case of a European patent, the territory of those Contracting Member States for which the European patent has effect. This provision defines the possible scope of UPC judgments but does not restrain the possibility to limit the revocation of European patents to certain UPC Member States.

1. Decisions and orders of the Court shall be reasoned and shall be given in writing in accordance with the Rules of Procedure.

2. Decisions and orders of the Court shall be delivered in the language of proceedings.

1. Decisions and orders of the Court shall be taken by a majority of the panel, in accordance with the Statute. In case of equal votes, the vote of the presiding judge shall prevail.

2. In exceptional circumstances, any judge of the panel may express a dissenting opinion separately from the decision of the Court.

The parties may, at any time in the course of proceedings, conclude their case by way of settlement, which shall be confirmed by a decision of the Court. A patent may not be revoked or limited by way of settlement.

The Court may order, at the request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of information concerning the Court's decision, including displaying the decision and publishing it in full or in part in public media.

1. A request for rehearing after a final decision of the Court may exceptionally be granted by the Court of Appeal in the following circumstances:

(a) on discovery of a fact by the party requesting the rehearing, which is of such a nature as to be a decisive factor and which, when the decision was given, was unknown to the party  requesting the rehearing; such request may only be granted on the basis of an act which was held, by a final decision of a national court, to constitute a criminal offence; or

(b) in the event of a fundamental procedural defect, in particular when a defendant who did not appear before the Court was not served with the document initiating the proceedings or an equivalent document in sufficient time and in such a way as to enable him to arrange for the defence.

2. A request for a rehearing shall be filed within 10 years of the date of the decision but not later than two months from the date of the discovery of the new fact or of the procedural defect.
Such request shall not have suspensive effect unless the Court of Appeal decides otherwise. 

3. If the request for a rehearing is well-founded, the Court of Appeal shall set aside, in whole or in part, the decision under review and re-open the proceedings for a new trial and decision,
in accordance with the Rules of Procedure. 

4. Persons using patents which are the subject-matter of a decision under review and who act in good faith should be allowed to continue using such patents.

Commentary

In the Decision of the Court of Appeal UPC_CoA_402/2024 (Decision of The CoA of 19 June 2025 re: Alexion v. Samsung Bioepsis) it was confirmed that as a matter of principle decisions by the Court of Appeal are to be final.

However, a so-called rehearing is possible , wherein Art. 81(1) UPCA makes clear that a rehearing may only exceptionally be granted, namely in cases where a decision suffers from one of the serious deficiencies mentioned in Art 81 (1) UPCA and R. 247 RoP. Mere errors of any kind cannot be a ground for a rehearing.

Furthermore, a defect may only be considered fundamental if it can be established that without the defect the same decision would not have been taken (see judgment of 3 July 2014 in Kamino International Logistics and Datema Hellmann Worldwide Logistics, C-129/13 and C130/13, EU:C:2014:2041, paragraph 79 and the case-law cited). It is for the applicant to show this.

The same applies to evidence. It is for the parties to bring forward all the evidence required to sufficiently substantiate their arguments. The Court shall evaluate the evidence presented by the parties freely and independently (Art. 76(3) UPCA). The Court may make its own assessment of the weight that expert opinions and witness statements carry, whereby it may consider its evaluation of the neutrality of an expert or witness. The manner in which questions are asked or in which answers are formulated, may be a basis for such an assessment.

Since R. 247(c) RoP refers to Art. 76 UPCA re “right to be heard” a violation of this right is to be considered as a fundamental procedural defect which may be a reason for a rehearing.

The right to be heard is reflected in Art. 76(2) UPCA, which provides that decisions on the merits may only be based on grounds, facts and evidence, which were submitted by the parties or introduced into the procedure by an order of the Court and on which the parties have had an opportunity to present their comments. It is not required that a party must always have had the opportunity to provide comments in writing.

But it is to be borne in mind, that in case of a fundamental procedural defect, if known, must always be objected during the proceedings leading to the decision or an appeal (R. 248 RoP). This means that if in the opinion of a party the right to be heard is being violated the corresponding violation has to be objected immediately.

The reference to case law of the Technical Boards of Appeal (TBAs) and the Enlarged Board of Appeal (EBA) of the European patent Office (EPO) which the Court helds relevant for a decision and the lack of discussion this case law is not a fundamental procedural defect, because case law that parties are expected to have knowledge of includes case law of the Technical Boards of Appeal (TBAs) and the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) relevant for the issues at hand and the arguments advanced. Although the Court of Appeal is not bound by such case law, there is reason to consider TBA decisions and – even more so – EBA decisions - since these Boards apply the same substantive law provisions of the European Patent Convention (EPC) as the Court. A similar approach has been and still is taken by national courts of the Contracting Members States and other countries party to the EPC, such as the UK, who have national laws that are largely based on the substantive law provisions of the EPC. 

When litigating before the Court, party representatives are thus expected to be also aware of the relevant case law developed by the TBAs and EBA.

Finally, unless a decision could not have been objectively foreseen and would come as a surprise to the well informed representative, e.g. for being inconsistent with and fundamentally deviating from established case law or based on case law not yet available at the time of the oral hearing, the right to be heard does not require that the Court notifies the parties in advance of its (preliminary) opinion on any issue in dispute between the parties and / or the basis therefor, either in an interim conference or in a preliminary opinion issued prior to the oral hearing. The UPCA and RoP do not provide for such a system. The Court may provide a preliminary introduction to the action (R. 112.4 RoP) which may contain a preliminary opinion but is not held to do so.

1. Decisions and orders of the Court shall be enforceable in any Contracting Member State. An order for the enforcement of a decision shall be appended to the decision by the Court.

2. Where appropriate, the enforcement of a decision may be subject to the provision of security or an equivalent assurance to ensure compensation for any damage suffered, in particular
in the case of injunctions.

3. Without prejudice to this Agreement and the Statute, enforcement procedures shall be governed by the law of the Contracting Member State where the enforcement takes place. Any decision of the Court shall be enforced under the same conditions as a decision given in the Contracting Member State where the enforcement takes place.

4. If a party does not comply with the terms of an order of the Court, that party may be sanctioned with a recurring penalty payment payable to the Court. The individual penalty shall be  proportionate to the importance of the order to be enforced and shall be without prejudice to the party's right to claim damages or security.

Commentary

Art. 82 UPCA specifies the enforcement of a judgement and is also applicable for arbitration awards and mediation agreements reached by use of the PMAC (Art. 35.2 UPCA).

1. Related Laws

A) Brussels I Recast Regulation 1215/2012 - EU memberstates

The rules of recognition and enforcement according to Brussels I Recast Regulation still apply. Enforcement is a two-step procedure, first requiring recognition of the judgement and second the enforcement. According to Art. 39 Brussels I Recast Regulation, a judgment given in a Member State, like UPC decisions, shall be recognised in the other Member States without any special procedure being required.

A certificate according to Annex I of Brussels I Recast Regulation shall be executed by UPC upon request of any interested party (Art. 53 Brussels I Recast Regulation). 

B) Lugano Convention 2007 - EFTA member states

Enforcement of an UPC judgement outside the applicability of Brussels I Recast Regulation in a country of the European Free Trade Association (Denmark, Iceland, Norge, Switzerland) is handled by the Lugano Convention 2007 with recognition and enforcement according to Title III Lugano Convention. According to Art. 33 Lugano Convention no special procedure is required for recognition of a judgement.

The order for the enforcement according to Art. 82 .1 UPCA has the function of recognition of the judgement, i.e. declaration of enforceability, even if this is not necessarily required under Art. 39 Brussels I Recast Regulation.

C) Hague Judgments Convention 2019 – EU, UK, Ukraine, Uruguay

The Hague Judgment Convention 2019 governs the recognition of judgments in civil and commercial matters. It is in force for EU, United Kingdom, Ukraine and Uruguay.  The USA signed the convention but has not ratified yet. Since EU is a contracting member, the UPC decisions are judgments accordring to Art. 4.1 Hague Judgments Convention given by a court of a Contracting State (State of origin) which shall be recognised and enforced in another Contracting State (requested State) in accordance with the provisions of this convention. The procedure for recognition, declaration of enforceability or registration for enforcement, and the enforcement of the judgment, are governed by the law of the requested State unless this Convention provides otherwise (Art. 13.1 Hague Judgments Convention).

2. Direct Enforcement in UPC member states

In UPC_CFI_239/2023 (Plant-e, Plant-e Knowledge v. Arkyne Technologies S.L., order of 15 February 2025), the LD The Hague stated that the UPC is deemed to be a court of a Member State for the purposes of the Brussels I Recast Regulation (see Art. 71a Brussels I). Its decisions and orders are directly enforceable in any contracting member state in accordance with Art. 82 UPCA, Art. 71d Brussels I Recast regulation and R. 354.1 RoP​​​​​​​.

Outside the UPC contracting member states, Brussels I Recast Regulation is applicable for the other member states and Lugano Convention for the countries of the European Free Trade Association.

3. Preliminary Injunction Orders

In UPC_CFI_2/2023 (10xGenomics v. NanoString Technologies et al), the Local Division in Munich emphasized the immediate enforceability of preliminary injunction orders without the need for additional court enforcement orders under Art. 82.4 UPCA. The decision clarifies that the conditions for imposing fines are conclusively defined in Art. 82.4 UPCA and any additional enforcement requirements from national laws are not applicable. Rule 118.8 of the Rules of Procedure, according to its clear wording does not apply to orders under Art. 62 UPCA. In response to the violations, the court imposed a fine of 100.000,00 EUR, emphasizing the importance of the court orders and the need for an effective enforcement mechanism. The court considered factors such as the nature, extent, and duration of the violations in determining the amount of the fine.

4. Penalty Payments

According to R. 354 RoP, the Court’s decisions and orders may provide for periodic penalty payments payable to the Court in the event that a party fails to comply with the terms of the order or an earlier order.

In UPC_CoA_835/2024 (Amazon et. al. vs. Nokia et al., order of 20 January 2025), the Court of Appeal stated that an order of penalty payments according to Art. 82.4 UPCA in the event that a party does not comply with an order of the Court, can apply only to the parties and not to the representatives, although that does not exclude holding the parties liable for contraventions committed by their representatives.

In it was stated that the penalty payment to be imposed pursuant to Art. 82.4 UPCA is intended to punish non-compliance with the decisions of the UPC. The penalty payment is punitive in nature and can therefore be imposed not only to enforce compliance with an order, but also to punish past non-compliance (as in this case: LK Düsseldorf, UPC_CFI_177/2023 (myStromer vs. Revolt, order of 18. October 2023); v.Falck/Stoll in Tilmann/Plassmann, EPGÜ Art. 82 para. 123 f.; dissenting opinion Kircher in Bopp/Kircher, Handbuch Europäischer Patentprozess, 2nd edition 2023, § 27 para. 60). A restriction of the penalty payment to the purpose of compelling the party concerned to comply with a court order cannot be inferred from the wording of Art. 82.4 UPCA.

According to UPC_CoA_845/2024 (Order of the Court of Appeal Belkin v. Philips of 30 May 2025) penalty payments do not only serve a coercive function but also have a punitive nature, their imposition is justified even where the defendant has, at a later stage, i.e. belatedly, complied with the obligation to provide information as ordered.

The punitive nature of the penalty payment is evident from the wording of Art. 82(4) UPCA. 

A party that does not comply with a court order may, according to the French version of Art. 82(4) UPCA, be sanctioned with a penalty ("sanctionnée par une astreinte", emphasis by the Court). The punitive nature of the sanction is confirmed by the fact that, under French law, an “astreinte” according to prevailing opinion serves a punitive function, as it can be imposed even if the court order is complied with belatedly (cf. Art. L.131-4 para. 3 of the Code des 12 procédures civiles d’exécution). 

The punitive nature is also indicated for the same reasons by the English version (“sanctioned with a […] penalty payment”) (cf. Falck/Stoll in Tilmann/Plassmann, Art. 82 UPCA para. 123).

The German version of Art. 82(4) UPCA does not contradict the punitive nature of the penalty payment. It states that a party may be “imposed with penalty payments” (“kann mit […] Zwangsgeldern belegt werden”). To the legally trained German reader, the term “Zwangsgeld” may suggest a purely coercive function – since German civil procedure distinguishes between “Zwangsgeld” (§ 888 ZPO) and “Ordnungsgeld” (§ 890 ZPO) – only “Ordnungsgeld” has a punitive nature. However, given the clear wording in the English and French versions, it must be assumed that the drafting body, in choosing the term “Zwangsgeld” ("penalty payment"), did not intend to draw the distinction present in German civil procedural law.

Further, it is worth to be noted that any  sanction with punitive characteristics requires fault (nulla poena sine culpa). In accordance with this requirement, the payment of a penalty sum shall be imposed when the defendant's fault can be established. Thus, a penalty payment may only be imposed if the defendant failed to undertake actions that were both possible and reasonable in order to fulfil the obligation that is reinforced by a penalty. The burden of proof that timely and proper compliance was not reasonable and/or possible lies with the defendant.

1. During a transitional period of seven years after the date of entry into force of this Agreement, an action for infringement or for revocation of a European patent or an action for infringement or for declaration of invalidity of a supplementary protection certificate issued for a product protected by a European patent may still be brought before national courts or other competent national authorities.

2. An action pending before a national court at the end of the transitional period shall not be affected by the expiry of this period.

3. Unless an action has already been brought before the Court, a proprietor of or an applicant for a European patent granted or applied for prior to the end of the transitional period under paragraph 1 and, where applicable, paragraph 5, as well as a holder of a supplementary protection certificate issued for a product protected by a European patent, shall have the possibility to opt out from the exclusive competence of the Court. To this end they shall notify their opt-out to the Registry by the latest one month before expiry of the transitional period. The opt-out shall take effect upon its entry into the register. 

4. Unless an action has already been brought before a national court, proprietors of or applicants for European patents or holders of supplementary protection certificates issued for a product protected by a European patent who made use of the opt-out in accordance with paragraph 3 shall be entitled to withdraw their opt-out at any moment. In this event they shall notify the  registry accordingly. The withdrawal of the opt-out shall take effect upon its entry into the register. 

5. Five years after the entry into force of this Agreement, the Administrative Committee shall carry out a broad consultation with the users of the patent system and a survey on the number of European patents and supplementary protection certificates issued for products protected by European patents with respect to which actions for infringement or for revocation or declaration of invalidity are still brought before the national courts pursuant to paragraph 1, the reasons for this and the implications thereof. On the basis of this consultation and an opinion of the Court, the Administrative Committee may decide to prolong the transitional period by up to seven years.

Commentary

Article 83 UPCA delineates the transitional framework governing the jurisdictional interplay between national courts and the Unified Patent Court (UPC) during the initial seven years following the Agreement's entry into force.

1. Scope of Parallel Jurisdiction 

Under Article 83.1 UPCA, during the transitional period, actions for infringement or revocation of European patents, as well as actions concerning supplementary protection certificates (SPCs), may still be initiated before national courts. 

In UPC_CFI_9/2024 (Texport v. Sioen, order of 29 October 2024), the Court of First Instance clarified that the parallel jurisdiction during the transitional period also encompasses actions for a declaration of non-infringement, even though such actions are not explicitly mentioned in Article 83(1) UPCA. The Court reasoned that an action for a declaration of non-infringement is the mirror of an action for infringement, referencing the CJEU's decision in Tatry (C-406/92). 

Furthermore, in UPC_CoA_227/2024 (Mala v. Nokia, order of 17 September 2024), the Court of Appeal held that during the transitional period of Article 83 UPCA, Articles 29 to 32 and 71c of the Brussels I Recast Regulation apply where proceedings are pending before the UPC and a national court, even if the proceedings before the national court were initiated prior to the transitional period.

In UPC_CoA_156/2025 (CoA, XSYS Germany et al. v. Esko Graphics Imaging, order of June 2, 2025), the CoA found that during the transitional period set out under Art. 83 UPCA, and unless the patent has been opted out from the exclusive competence of the Court pursuant to Art. 83(3) UPCA, the (exclusive) competence of the UPC coexists with a parallel competence of national courts before which an action for infringement of a European patent may still be brought. Although it provides for a concurrent competence during the transitional period according to which the patent holder has the option to initiate infringement proceedings either before the UPC or before a national court, said option is limited to the choice of forum and does not provide, as a result of such a choice, for a partial or limited competence of the elected court, whether as to the subject matter (the patent infringement) of the action or as to the time period for which the chosen court is competent.

2. National material law under Art. 83 UPCA: 

The OLG Karlsruhe confirmed, in 6 U 232/22, decision of 14 February 2024, that the Unified Patent Court Agreement (UPCA) does not alter the application of material law over claims related to the national parts of European patents. Specifically, the Court clarified that claims for infringement of the German part of a European patent remain subject to national patent law, including §§ 139 ff. PatG, even after the UPCA has entered into force. The Court noted that the material provisions of the UPCA, including Arts. 25 et seq., apply exclusively when the Unified Patent Court has jurisdiction.

The Preparatory Committee of the UPC, in an interpretative note dated 29 January 2014, clarified that if a European patent, an application for a European patent, or a supplementary protection certificate (SPC) issued for a product protected by a European patent is opted out under Art. 83.3 UPCA, or if an action is brought before a national court during the transitional period under Art. 83.1 UPCA, the UPCA no longer applies to the opted-out patent, application, or SPC. Consequently, the competent national court must apply the applicable national law, without being bound by the substantive patent law provisions in the UPCA, including those in Chapter V.

In UPC_CoA_156/2025 (CoA, XSYS Germany et al. v. Esko Graphics Imaging, order of June 2, 2025), the CoA found that the question of whether the substantive law of Art. 25 et seq. UPCA and the measures, procedures and remedies as laid down under Art. 56 UPCA are applicable in relation to acts having occurred before the entry into force of the UPCA is to be decided at a later stage and is not one to be addressed at the stage of a Preliminary objection.

3. Continuation of National Proceedings

Article 83.2 UPCA stipulates that any action pending before a national court at the conclusion of the transitional period shall remain unaffected by the expiry of this period.

4. Opt-Out Mechanism

Article 83.3 UPCA introduces the opt-out mechanism, permitting proprietors or applicants of European patents, as well as holders of SPCs, to exclude their patents from the UPC's exclusive competence. The opt-out must be notified to the Registry no later than one month before the end of the transitional period and takes effect upon its entry into the register.

In UPC_CoA_79/2024 (Neo Wireless GmbH & Co. KG v. Toyota Motor Europe, order of 4 June 2024), the Court of Appeal emphasized that a valid opt-out requires the participation of all proprietors of all national parts of the European patent. Failure to include all such parties renders the opt-out ineffective.

5. Withdrawal of Opt-Out (“Opt-In”)

Article 83.4 UPCA allows for the withdrawal of an opt-out (= “opt-in”), provided no action has already been brought before a national court. The withdrawal becomes effective upon its entry into the register.

In UPC_CoA_489/2023 (AIM Sport Development AG v. Supponor Oy et al., order of 12 November 2024), the Court of Appeal clarified that the phrase "unless an action has already been brought before a national court" in Article 83(4) refers specifically to actions initiated during the transitional period. Actions commenced prior to this period do not preclude the withdrawal of an opt-out. The Court emphasized that the term “action” under Article 83(1) UPCA includes all proceedings within the Court's competence, but that only those initiated during the transitional period have an effect on the ability to withdraw an opt-out.

In UPC_CFI_9/2023 (Huawei v. Netgear, decision of 18 December 2024), the Munich Local Division addressed the effective date of a withdrawal of an opt-out. The Court held that the effective date is the date of entry in the register if no correction is requested from the registry. Furthermore, the only required form for the “opt-in” is the corresponding CMS workflow; the provided template is not a required form within the meaning of Rule 4.1 RoP.

In UPC_CFI_182/2023 (CUP&CINO v. Alpina Coffee, order of 13 September 2023), the Vienna Local Division held that an application to opt-out filed after the commencement of an action before the Court is ineffective. The Court reasoned that the jurisdiction of the UPC can no longer be withdrawn once an action has been initiated, and a request for interim measures constitutes an “action” within the meaning of Rule 5 and 5A RoP and Article 83(3) UPCA.

In UPC_CFI_515/2023 (Volkswagen et al. v. NST, order of 8 May 2024), the Munich Local Division confirmed that a valid withdrawal of an opt-out can be filed by a representative included in the official list of patent attorneys kept by the Registrar pursuant to Article 48(3) UPCA. The representative was not required to justify the filing with a power of attorney at the time of filing the application on behalf of NST (Rule 5.3(b)(i) RoP, Article 83(3) UPCA).

In UPC_CoA_156/2025 (CoA, XSYS Germany et al. v. Esko Graphics Imaging, order of June 2, 2025), the CoA found that in case of an effective withdrawal from an effective opt-out, the UPC is competent to decide on alleged acts of infringement which have occurred during the time period between the date of the opt-out and that of the withdrawal.

6. Counterclaims for Revocation

In UPC_CFI_483/2023 (Seoul Viosys v. epert e-Commerce, decision of 10 October 2024), the Düsseldorf Local Division affirmed the UPC's international competence regarding counterclaims for revocation of non-opted out European patents. The Court held that such counterclaims fall within the UPC's jurisdiction pursuant to Article 32(1)(e) UPCA, Article 83(3) UPCA, and Article 24(4) of the Brussels I Recast Regulation, even when such patents are also subject to national proceedings.

7. Extension of Transitional Period

Article 83.5 UPCA provides that five years after the Agreement's entry into force, the Administrative Committee shall conduct a comprehensive consultation with patent system users and assess the frequency and reasons for actions still being brought before national courts. Based on this evaluation and an opinion from the Court, the Committee may decide to prolong the transitional period by up to seven years.

1. This Agreement shall be open for signature by any Member State on 19 February 2013.

2. This Agreement shall be subject to ratification in accordance with the respective constitutional requirements of the Member States. Instruments of ratification shall be deposited with the General Secretariat of the Council of the European Union (hereinafter referred to as ‘the depositary’).

3. Each Member State having signed this Agreement shall notify the European Commission of its ratification of the Agreement at the time of the deposit of its ratification instrument pursuant to Article 18(3) of Regulation (EU) No 1257/2012.

4. This Agreement shall be open to accession by any Member State. Instruments of accession shall be deposited with the depositary.

1. The depositary shall draw up certified true copies of this Agreement and shall transmit them to the governments of all signatory or acceding Member States.

2. The depositary shall notify the governments of the signatory or acceding Member States of:

(a) any signature;

(b) the deposit of any instrument of ratification or accession;

(c) the date of entry into force of this Agreement.

3. The depositary shall register this Agreement with the Secretariat of the United Nations.

This Agreement shall be of unlimited duration.

1. Either seven years after the entry into force of this Agreement or once 2 000 infringement cases have been decided by the Court, whichever is the later point in time, and if necessary at regular intervals thereafter, a broad consultation with the users of the patent system shall be carried out by the Administrative Committee on the functioning, efficiency and cost-effectiveness of the Court and on the trust and confidence of users of the patent system in the quality of the Court's decisions. On the basis of this consultation and an opinion of the Court, the  Administrative Committee may decide to revise this Agreement with a view to improving the functioning of the Court.

2. The Administrative Committee may amend this Agreement to bring it into line with an international treaty relating to patents or Union law. 

3. A decision of the Administrative Committee taken on the basis of paragraphs 1 and 2 shall not take effect if a Contracting Member State declares within twelve months of the date of the
decision, on the basis of its relevant internal decision-making procedures, that it does not wish to be bound by the decision. In this case, a Review Conference of the Contracting Member
States shall be convened.

1. This Agreement is drawn up in a single original in the English, French and German languages, each text being equally authentic.

2. The texts of this Agreement drawn up in official languages of Contracting Member States other than those specified in paragraph 1 shall, if they have been approved by the Administrative Committee, be considered as official texts. In the event of divergences between the various texts, the texts referred to in paragraph 1 shall prevail.

1. This Agreement shall enter into force on 1 January 2014 or on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession in accordance
with Article 84, including the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement
takes place or on the first day of the fourth month after the date of entry into force of the amendments to Regulation (EU) No 1215/2012 concerning its relationship with this Agreement,
whichever is the latest.

2. Any ratification or accession after the entry into force of this Agreement shall take effect on the first day of the fourth month after the deposit of the instrument of ratification or accession.