Unified Patent Court (UPC)

The UPC represents a significant milestone in the field of intellectual property, offering a unified framework for patent enforcement across participating European countries.

The UPC establishes a specialized court system that will streamline and harmonize patent disputes, offering businesses a faster, more efficient, and cost-effective way to protect their inventions and defend their rights.

The UPC simplifies the complex process of patent litigation by providing a centralized venue for resolving disputes. The aim is to provide consistent judgments, reduce the risk of contradictory decisions, and save businesses valuable time and resources.

European Unitary Patent

Not only will the UPC enter into force, but a European Unitary Patent will also be introduced, which is a new possibility to obtain patent protection with one application with uniform effect throughout the EU with the exception of Spain, Poland, the Czech Republic, Hungary and Croatia. The UK is also not included in the UPC scheme or the unitary patent.

UPC streamlines the patent litigation process

The UPC therefore represents a long-awaited streamlining of the patent litigation process. However, the UPC also brings major changes to patent enforcement, and parties must now act quickly and be more proactive than ever before. The UPC places strict demands on the parties' case preparation, where the parties must work with very short deadlines and thus often faster than they are used to from the national courts they have navigated so far.

The UPC expects that an infringement case can be completed within 1 year in the first instance. In connection with infringement cases, UPC therefore operates quickly and with the possibility of cutting off subsequent evidence. This places great demands on the defendant's work in the first months of the case. As a defendant, you must be prepared to defend yourself at very short notice.

UPC is our expertise

At Horten, we are at the forefront of intellectual property law and have a team of experienced attorneys who are well-versed in the intricacies of the UPC. Our expertise, coupled with a deep understanding of our clients' industries, allows us to provide tailored and strategic guidance fit to our clients' need, from IP strategi to litigation. With the UPC as a game-changing addition to European patent law, we stand ready to navigate this new era of patent protection.

UPC's structure

The UPC offers a uniform structure for the handling of European patent cases. Whereas parties have been accustomed to juggling local cases in multiple jurisdictions, a patent dispute can now be brought directly before and resolved by the UPC alone.

The Court comprises a Court of First Instance, a Court of Appeal, and a Registry. Further, a Patent Mediation and Arbitration Centre is in place to facilitate amicable settlements.

The Court of First Instance has a decentralised structure and comprises a central division in Paris with a section in Munich, as well as various local and regional divisions located all over Europe. In Denmark the local division is situated at the Danish Maritime and Commercial High Courts premises in the heart of Copenhagen.

The Court of First Instance hears various types of actions as listed in Article 32 of the UPC Agreement, including actions regarding infringement, injunctions, and revocation.

The Court of Appeal has its seat in Luxembourg and decides on appeals against decisions of the Court of First Instance and on requests for rehearing of final decisions of the Court.

The Court is composed of judges from all over Europe. Any panel of the UPC shall have a multinational composition. The panels comprise both legally and technically qualified judges ensuring both legal and technical expertise and legal insight into the case at hand.
The proceeding of an infringement action

Compared to Danish patent infringement actions, the proceedings at the UPC are significantly faster. Therefore, it is important that you, in case of a lawsuit against your company, are prepared to act quickly and are aware of obtaining the correct professional advice from the very beginning.

One of the key differences between patent infringement actions filed at the Danish Courts and patent infringe actions filed at the UPC, is that the plaintiff's summons must include the plaintiff's full evidence, including expert statements. After service of the summons, written pleadings between the parties takes place with significantly shorter deadlines than is usually seen in Danish cases. This means that the parties must allocate the right resources very early in the proceedings and prepare the case thoroughly, including presenting the parties' key arguments and evidence at the very beginning of the preparation of the case.

Once the case is fully prepared, the trial hearing will take place. The trial hearing before the UPC must be completed in a single day, unlike trial hearings in patent cases before the Danish Courts, which typically last for several days. Therefore, unlike in Danish patent infringement cases, there is no opportunity for extensive questioning of experts or an in-depth presentation of the facts of the case. With the tight deadlines, UPC expects an infringement case to be completed within 1 year.

The proceedings of an infringement cases are thus in significant aspects different from what parties, who have experience with patent infringement cases in Denmark, are used to. The tight deadlines for exchanging written submissions and the significantly shorter trial hearing mean that the parties should secure professional and specialised advice as early as possible, enabling them to act with the necessary speed, precision, and professional weight.
Jurisdiction and language of proceedings

If the plaintiff wishes to bring an infringement action before the UPC, the case must be brought before the local or regional UPC division in either the country where the alleged infringement has taken place or in the country where the defendant has its residence or principal place of business. Infringement actions can also be brought before the UPC's central division in Paris.

Further information about the UPC's locations can be found here.

The language of proceedings depends on where the action is filed. The language of proceedings at the local/regional UPC division will either be the local language or one of the three European patent languages, namely English, German, or French, which the local/regional division itself has designated as the language of proceedings. The language of proceedings at the local division in Copenhagen is Danish or English. If there is a choice to be made regarding the language of proceedings, the plaintiff will choose the language of the proceedings.

Further information regarding the language of the local divisions can be found here.

The language of proceedings before the central division will be the language in which the patent was granted. This will be one of the three European languages, namely English, German, or French. In appeal proceedings, the language of proceedings will be the language of the proceedings at the court of first instance.

With the various options for the language of proceedings, there is a risk of the case being brought in a language that the defendant does not understand. Resources and time spent on translating pleadings and appendices must therefore also be factored into the process, especially given the short deadlines.

Read more about the proceedings of a patent infringement action before the UPC here.