UNITARY PATENT
the UPC are competent to decide on patent infringement actions, including provisional measures, and counterclaims for revocation, unless the court refers the counterclaim to the central division. T e central divisions of the UPC are competent to decide on revocation actions and declarations of non-infringement. Under certain circumstances, actions may be combined in the central division.
When the UP comes into force it will be considerably cheaper to obtain patent protection across the EU, and probably also cheaper to maintain that protection (the costs of renewal have yet to be determined). Whether litigation under the new system becomes more eff ective than established patent litigation will depend on the actual court costs and the handling of the litigation by the courts. As the rules of procedure of the UPC allow preliminary objections before a complete statement of defence, on which a court will have to decide separately, and as there are a number of preliminary questions whether a case can be referred to the central division, proceedings seem to be more comprehensive than many established national proceedings.
For the time being, patent holders need to review their existing patent portfolios and decide whether they wish to opt out of the new system during the transitional period.
Bernd Christian Janssen is a lawyer at Uexküll & Stolberg in Hamburg. He can be contacted at:
janssen@uex.de
fee for all participating EU member states and provides for judicial procedures in one court with eff ect in all countries.
However, during a transitional period of at most 12 years, a patent holder will have to provide a translation of the European patent into English, if the patent is granted in either German or French language, or into any other language of the EU, where the patent is granted in English. Only in the case of a dispute, at the request of a court or an alleged infringer, will the patent proprietor have to provide a full translation into the relevant language.
A common UPC will be constituted, serving as the single court having exclusive jurisdiction in infringement
and revocation proceedings
involving European patents in the 25 participating states, both if individual countries are designated and for the European patent. T e UPC would have two divisions: a court of fi rst instance and a court of appeal. T e court would have its seat, registry and central division in Paris, with branches in all
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member states that wish to set up one or more local or regional divisions.
T e central division would have branches in London focusing on chemistry cases, including pharmaceuticals and human necessities, and in Munich focusing on mechanical engineering cases. T e court of appeal will be located in Luxembourg and will also serve as the registry.
T e UPC will have competence to hear cases regarding European patents for which a unitary eff ect is registered with the EPO, and for other European patents registered with countries for which the agreement is applicable. In the latter case, during a seven-year transition period, cases may also be brought before national courts and proprietors of patents may opt out of the use of the UPC.
Cases may concern patent infringement, patent revocation, declarations of non-infringement of European patents and supplementary protection certifi cates, as well as the establishment of damages. T e local or
regional divisions of World Intellectual Property Review September/October 2013 95
Bernd Christian Janssen works in the chemistry team and in the trademark team at Uexküll & Stolberg in Hamburg. His activities include draſt ing of patent applications, patent prosecution and litigation, including nullity and infringement proceedings, with the main emphasis on prosecution, oppositions and appeals before the EPO. He specialises in chemistry and pharmacy.
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