The UPC after six months: high level of activity
"During its first six months, the Court of First Instance received a total of 160 cases, comprising 67 infringement actions and 24 revocation actions."
On the 1st of June 2023, the Unified Patent Court Agreement (UPCA) became effective, making the much awaited Unitary Patent (UP) system and breakthrough Unified Patent Court (UPC) operational.
As a reminder: the new Unitary Patent is based on the European patent and granted according to the European Patent Convention (EPC), so nothing changes in the pre-grant phase. After a European patent is granted, the patent proprietor can request unitary effect, thereby getting a Unitary Patent that provides uniform patent protection in 17 EU Member States.[1]
Post-grant, a Unitary Patent is litigated before the newly set-up Unified Patent Court (UPC). This Court consists currently of 13 Local Divisions – spread across 10 EU Member States – and of two Central Divisions (Munich and Paris). Generally, Local Divisions deal primarily with infringement actions, while the Central Divisions deal with invalidity claims.
From June 2023 to mid-December 2023, companies across various sectors including manufacturing, electronics and pharma have litigated before the UPC. During its first six months, the Court of First Instance received a total of 160 cases, comprising 67 infringement actions and 24 revocation actions.
Out of the 67 infringement actions, 23 were filed in the Munich Local Division, 11 in Düsseldorf and Mannheim, 7 in Paris, 4 in the Nordic Baltic Regional Division, 3 in Hamburg, Milan, and The Hague, and 1 in Brussels and Helsinki.
The Paris Central Division received 20 revocation actions, while the Munich Central Division has dealt with 4. In addition, 48 counterclaims for revocation, 13 applications for provisional measures, 5 applications for the preservation of evidence, 1 application for an order for inspection, 1 application for damages and 1 declaration of non-infringement have been filed with the UPC.
German was the most commonly used language so far, but this may change over time since it was only on the 1st of June 2023 that the German Local Division permitted the use of English (and cases may have been prepared beforehand in German). In all local and regional divisions litigation in English is possible. In the central division the language will be the one in which the patent was granted (French, English, German).
Bear in mind that European Patents that were granted or nationally validated before the entry into force of the UPC-system may be litigated before the UPC as well, unless the patent concerned has been opted-out of the UPC-system. An opt-out is possible during the so-called “sunrise period” of 7 years (that may be extended up to 14 years). Some specific issues (e.g. ownership disputes) and national patents are still to be litigated before the national courts. In Belgium, only the Brussels courts have jurisdiction and are competent in patent matters.
[1] Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden.