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The Unitary Patent and Unified Patent Court in a Nutshell

By Stanislas Roux-Vaillard
January 31, 2013

On Dec. 11, 2012, European Union Ministers in charge of competitiveness issues endorsed a legal package to create a Unitary Patent, which provides uniform legal protection in 25 European countries. On the same day, the Members of the European Parliament approved the European Union patent package including a Unitary Patent and Unified Patent Court.

The first Unified Patent should be validated by the European Patent Office in 2014.

Cost-cutting while ensuring quality for patent holders in Europe is a key goal of this new system. According to the European Commission, the cost of obtaining a Unitary Patent could be as low as '2,500 due to limited translation requirements. In this respect, the Unitary Patent will represent a tremendous cost savings for obtaining protection in 25 European countries. As a comparison, it is estimated that the current cost for an existing European Patent in 27 Member States is around '32,000 including translations.

Industry in Europe has indicated that it would really give the Unitary Patent a chance if it were coupled with a unitary dispute resolution system.

With appropriate court fees, the Unified Patent Court will be an opportunity for U.S. holders of Unitary Patents to enforce these affordably throughout the 25 Contracting Member States.

Context and Framework of the Unitary Patent and Unified Patent Court

Further to previous attempts to set a single patent title in the European Union, the Member States of the European Union have developed the Unitary Patent legislation, binding it to a unitary dispute resolution system now called the Unified Patent Court.

For the time being, the international system put into place extends to the Member States of the European Union less Italy and Spain. The 25 states thus taking part in the Unitary Patent and the Unified Patent Court are designated as
Contracting Member States.

The Unitary Patent is a brand new intellectual property title which will be granted by the European Patent Office upon opt-in by the patent owner.

A Unitary Patent will be granted once to cover the territory of the 25 Contracting Member States, and the Unified Patent Court will allow for a central enforcement of the Unitary Patent with equal effect on the territory of the 25 Contracting Member States.

The Unified Patent Court is dedicated to patent law issues and is common to Contracting Member States, i.e., several European Union Member States.

Jurisdiction of the Unified Patent Court

The Unified Patent Court will have jurisdiction to hear cases brought by private parties (e.g., companies, individuals) on questions relating to the existence and enforcement of a limited number of industrial property rights having effect in the Contracting Member States.

The Unified Patent Court will have exclusive jurisdiction to hear cases relating to Unitary Patents.

In this respect, the primary goal of the Unified Patent Court is to ensure that Unitary Patents also enjoy a unitary enforcement thanks to a dedicated court system.

The Unified Patent Court will also hear cases over Supplementary Protection Certificates (“SPCs”) granted in the Contracting Member States, even if SPCs are national rights.

Additionally, in the Contracting Member States, after a transitional period of seven years after the entry into force of the Unitary Patent and the Unified Patent Court, the latter will have exclusive jurisdiction in disputes over European Patents. Decisions of the Unified Patent Court over European patents will have a unitary effect in the Contracting Member States designated in the European Patent.

Before the end of the transitional period, an action regarding the nullity or infringement of a European Patent may still be initiated before a pre-existing national court (as is currently the case).

Moreover, owners of or applicants for a European Patent granted or applied for before or during the transitional period will have the choice to opt-out of the competence of the Unified Patent Court.

General Structure of the Unified Patent Court

The Unified Patent Court will comprise a Court of First Instance, a Court of Appeal and a Registry.

The Court of First Instance will not be in only one location. Rather, the Court of First Instance will consist of a network of courts spread throughout the Contracting Member States.

The First Instance Court will be composed of local divisions, regional divisions and a unique central division.

Local divisions will be set up in a Contracting Member State upon its request. When more than 100 patent cases per calendar year have been commenced in a Contracting Member State during three successive years, such Contracting Member State can request to host another local division.

Two or more Contracting Member States can join to create a regional division that will hear, in respect of its material jurisdiction, patent cases from the relevant Contracting Member States.

The central division will be located in Paris and, in order to propose a high specialization of the Court, will comprise thematic clusters, located in London for litigation related to pharmaceutical, biotech, chemical and metallurgical patents and in Munich for litigation related to mechanical engineering patents. The Paris cluster will notably be dedicated to litigation related to physics, electricity and electronics.

The Court of Appeal, as well as the Registry, will have their seat in Luxembourg. The Court of Appeal will review cases on both facts and law.

Language of Proceedings

Before the central division of the Court of First Instance, the language of proceedings is always the language in which the patent at stake was granted.

Before local divisions of the Court of First Instance, the language of proceedings will be the official European Union language of the Contracting Member State hosting the local division concerned.

As far as regional divisions of the Court of First Instance are concerned, the language of proceedings will be the official European Union language designated by the Contracting Member States sharing the regional division.

Before local and regional divisions, the language of proceeding can also be the language in which the patent was granted, if the parties agree so, subject to approval by the competent division.

The language of proceedings before the Court of Appeal will be the same as the language of proceedings before the Court of First Instance.

Judges of the Divisions and Appeal Court

The Unified Patent Court panels of judges will have a multinational composition.

Any panel of the Court of First Instance will sit in a composition of three judges, with at least one foreign judge.

Judges from a Pool of Judges, including at least one technically qualified judge per field of technology, will be allocated by the President of the Court of First Instance to the various divisions of the court, ensuring a high level of technical speciality.

In local divisions of the Court of First Instance, two judges of the panel will be nationals of the Contracting Member State that hosts the relevant local division and the third legally qualified judge will be allocated on a permanent basis from the Pool of Judges.

In regional divisions, a list of judges, who will be nationals of the relevant Contracting Member States, will be set and two permanent legally qualified judges will be appointed amongst them. The third legally qualified judge will be allocated from the Pool of Judges under the requirement not to be a national of the relevant Contracting Member States.

The judges panel of local and regional divisions may request the President of the Court of First Instance, where the case at issue requires so, to allocate from the Pool of Judges an additional judge technically qualified in the relevant field of technology.

At the central division in Paris, the panel will always be composed of two legally qualified judges and one judge allocated from the Pool of Judges who will be technically qualified in the relevant field of technology.

Proceedings before the Court of Appeal will be heard by a multinational panel of five judges. The panel will count three technically qualified judges and two legally qualified judges, and the panel will be chaired by a legally qualified judge.

Divisions' Respective Jurisdictions at First Instance Level

Actions brought before the Unified Patent Court in first instance will be allocated between the local and regional divisions on the one hand and the central division on the other hand.

As far as material jurisdiction is concerned, local and regional divisions will have exclusive jurisdiction over infringement actions, provisional and protective reliefs and injunctions, actions for damages or compensation and prior use claims.

The central division will have exclusive jurisdiction over actions for declarations of non-infringement and actions for revocation of patents.

As far as territorial jurisdiction for infringement cases is concerned, actions will have to be brought either: 1) before the local division hosted by the Contracting Member State where the infringement has or may occur, or the regional division in which such Contracting Member State participates, or 2) before the local division hosted by the Contracting Member State where the defendant is domiciled, or the regional division in which such Contracting Member State takes part.

In cases where the defendant is domiciled outside the territory of the participating Contracting Member States, the local or regional division in accordance with option (1) above will have jurisdiction, unless the concerned Contracting Member State does not host a local division nor participate in a regional division, in which case the central division will have jurisdiction.

Alternatively, litigating parties may agree on the place where the proceedings should be brought.

In situations of concurrence of actions, specific rules of jurisdiction are set which will derogate from those mentioned above.

Powers of the Unified Patent Court

In litigations over Unified Patents, the decisions and orders of the Unified Patent Court will have effect in all of the 25 Contracting Member States.

In litigations over European Patents, the decisions and orders of the Unified Patent Court will have unitary effect in all of the Contracting Member States designated under the European Patent.

The Unified Patent Court will be entitled to issue a large range of orders, measures and injunctions, either in terms of evidence, expertise, protective measures, enforcement and remedies. Most of these measures are similar to those found in the Enforcement Directive (directive 2004/48/EC) which has been implemented on a national basis, notably in the Contracting Member States.

As an example, subject for a party to provide for reasonably available evidence to support a claim for infringement, the Unified Patent Court will also have the power to order, possibly on an ex parte basis, provisional measures to preserve relevant evidence in respect of an alleged infringement, actual or threatened. Such measures may imply an inspection of the premises of the alleged infringer.

The Unified Patent Court will also have the power to order provisional and protective measures, intended to prevent a threatened infringement or to stop an actual infringement.

An award of damages by the Unified Patent Court will be compensatory and take into account the lost profits of the patent holder; the profits made by the infringer; or the royalties or fees that the patentee would have received but for the infringement.


Stanislas Roux-Vaillard is a counsel at Hogan Lovells in France. He specializes in patent litigation, representing international clients notably in the field of life sciences, telecommunications and chemistry. Stanislas was admitted to the Paris Bar in 2002. He is the author of a doctorate thesis on the comparison of U.S. and French case law on patentability requirements (2001) and also holds a U.S. LL.M. in Intellectual Property (2000).

On Dec. 11, 2012, European Union Ministers in charge of competitiveness issues endorsed a legal package to create a Unitary Patent, which provides uniform legal protection in 25 European countries. On the same day, the Members of the European Parliament approved the European Union patent package including a Unitary Patent and Unified Patent Court.

The first Unified Patent should be validated by the European Patent Office in 2014.

Cost-cutting while ensuring quality for patent holders in Europe is a key goal of this new system. According to the European Commission, the cost of obtaining a Unitary Patent could be as low as '2,500 due to limited translation requirements. In this respect, the Unitary Patent will represent a tremendous cost savings for obtaining protection in 25 European countries. As a comparison, it is estimated that the current cost for an existing European Patent in 27 Member States is around '32,000 including translations.

Industry in Europe has indicated that it would really give the Unitary Patent a chance if it were coupled with a unitary dispute resolution system.

With appropriate court fees, the Unified Patent Court will be an opportunity for U.S. holders of Unitary Patents to enforce these affordably throughout the 25 Contracting Member States.

Context and Framework of the Unitary Patent and Unified Patent Court

Further to previous attempts to set a single patent title in the European Union, the Member States of the European Union have developed the Unitary Patent legislation, binding it to a unitary dispute resolution system now called the Unified Patent Court.

For the time being, the international system put into place extends to the Member States of the European Union less Italy and Spain. The 25 states thus taking part in the Unitary Patent and the Unified Patent Court are designated as
Contracting Member States.

The Unitary Patent is a brand new intellectual property title which will be granted by the European Patent Office upon opt-in by the patent owner.

A Unitary Patent will be granted once to cover the territory of the 25 Contracting Member States, and the Unified Patent Court will allow for a central enforcement of the Unitary Patent with equal effect on the territory of the 25 Contracting Member States.

The Unified Patent Court is dedicated to patent law issues and is common to Contracting Member States, i.e., several European Union Member States.

Jurisdiction of the Unified Patent Court

The Unified Patent Court will have jurisdiction to hear cases brought by private parties (e.g., companies, individuals) on questions relating to the existence and enforcement of a limited number of industrial property rights having effect in the Contracting Member States.

The Unified Patent Court will have exclusive jurisdiction to hear cases relating to Unitary Patents.

In this respect, the primary goal of the Unified Patent Court is to ensure that Unitary Patents also enjoy a unitary enforcement thanks to a dedicated court system.

The Unified Patent Court will also hear cases over Supplementary Protection Certificates (“SPCs”) granted in the Contracting Member States, even if SPCs are national rights.

Additionally, in the Contracting Member States, after a transitional period of seven years after the entry into force of the Unitary Patent and the Unified Patent Court, the latter will have exclusive jurisdiction in disputes over European Patents. Decisions of the Unified Patent Court over European patents will have a unitary effect in the Contracting Member States designated in the European Patent.

Before the end of the transitional period, an action regarding the nullity or infringement of a European Patent may still be initiated before a pre-existing national court (as is currently the case).

Moreover, owners of or applicants for a European Patent granted or applied for before or during the transitional period will have the choice to opt-out of the competence of the Unified Patent Court.

General Structure of the Unified Patent Court

The Unified Patent Court will comprise a Court of First Instance, a Court of Appeal and a Registry.

The Court of First Instance will not be in only one location. Rather, the Court of First Instance will consist of a network of courts spread throughout the Contracting Member States.

The First Instance Court will be composed of local divisions, regional divisions and a unique central division.

Local divisions will be set up in a Contracting Member State upon its request. When more than 100 patent cases per calendar year have been commenced in a Contracting Member State during three successive years, such Contracting Member State can request to host another local division.

Two or more Contracting Member States can join to create a regional division that will hear, in respect of its material jurisdiction, patent cases from the relevant Contracting Member States.

The central division will be located in Paris and, in order to propose a high specialization of the Court, will comprise thematic clusters, located in London for litigation related to pharmaceutical, biotech, chemical and metallurgical patents and in Munich for litigation related to mechanical engineering patents. The Paris cluster will notably be dedicated to litigation related to physics, electricity and electronics.

The Court of Appeal, as well as the Registry, will have their seat in Luxembourg. The Court of Appeal will review cases on both facts and law.

Language of Proceedings

Before the central division of the Court of First Instance, the language of proceedings is always the language in which the patent at stake was granted.

Before local divisions of the Court of First Instance, the language of proceedings will be the official European Union language of the Contracting Member State hosting the local division concerned.

As far as regional divisions of the Court of First Instance are concerned, the language of proceedings will be the official European Union language designated by the Contracting Member States sharing the regional division.

Before local and regional divisions, the language of proceeding can also be the language in which the patent was granted, if the parties agree so, subject to approval by the competent division.

The language of proceedings before the Court of Appeal will be the same as the language of proceedings before the Court of First Instance.

Judges of the Divisions and Appeal Court

The Unified Patent Court panels of judges will have a multinational composition.

Any panel of the Court of First Instance will sit in a composition of three judges, with at least one foreign judge.

Judges from a Pool of Judges, including at least one technically qualified judge per field of technology, will be allocated by the President of the Court of First Instance to the various divisions of the court, ensuring a high level of technical speciality.

In local divisions of the Court of First Instance, two judges of the panel will be nationals of the Contracting Member State that hosts the relevant local division and the third legally qualified judge will be allocated on a permanent basis from the Pool of Judges.

In regional divisions, a list of judges, who will be nationals of the relevant Contracting Member States, will be set and two permanent legally qualified judges will be appointed amongst them. The third legally qualified judge will be allocated from the Pool of Judges under the requirement not to be a national of the relevant Contracting Member States.

The judges panel of local and regional divisions may request the President of the Court of First Instance, where the case at issue requires so, to allocate from the Pool of Judges an additional judge technically qualified in the relevant field of technology.

At the central division in Paris, the panel will always be composed of two legally qualified judges and one judge allocated from the Pool of Judges who will be technically qualified in the relevant field of technology.

Proceedings before the Court of Appeal will be heard by a multinational panel of five judges. The panel will count three technically qualified judges and two legally qualified judges, and the panel will be chaired by a legally qualified judge.

Divisions' Respective Jurisdictions at First Instance Level

Actions brought before the Unified Patent Court in first instance will be allocated between the local and regional divisions on the one hand and the central division on the other hand.

As far as material jurisdiction is concerned, local and regional divisions will have exclusive jurisdiction over infringement actions, provisional and protective reliefs and injunctions, actions for damages or compensation and prior use claims.

The central division will have exclusive jurisdiction over actions for declarations of non-infringement and actions for revocation of patents.

As far as territorial jurisdiction for infringement cases is concerned, actions will have to be brought either: 1) before the local division hosted by the Contracting Member State where the infringement has or may occur, or the regional division in which such Contracting Member State participates, or 2) before the local division hosted by the Contracting Member State where the defendant is domiciled, or the regional division in which such Contracting Member State takes part.

In cases where the defendant is domiciled outside the territory of the participating Contracting Member States, the local or regional division in accordance with option (1) above will have jurisdiction, unless the concerned Contracting Member State does not host a local division nor participate in a regional division, in which case the central division will have jurisdiction.

Alternatively, litigating parties may agree on the place where the proceedings should be brought.

In situations of concurrence of actions, specific rules of jurisdiction are set which will derogate from those mentioned above.

Powers of the Unified Patent Court

In litigations over Unified Patents, the decisions and orders of the Unified Patent Court will have effect in all of the 25 Contracting Member States.

In litigations over European Patents, the decisions and orders of the Unified Patent Court will have unitary effect in all of the Contracting Member States designated under the European Patent.

The Unified Patent Court will be entitled to issue a large range of orders, measures and injunctions, either in terms of evidence, expertise, protective measures, enforcement and remedies. Most of these measures are similar to those found in the Enforcement Directive (directive 2004/48/EC) which has been implemented on a national basis, notably in the Contracting Member States.

As an example, subject for a party to provide for reasonably available evidence to support a claim for infringement, the Unified Patent Court will also have the power to order, possibly on an ex parte basis, provisional measures to preserve relevant evidence in respect of an alleged infringement, actual or threatened. Such measures may imply an inspection of the premises of the alleged infringer.

The Unified Patent Court will also have the power to order provisional and protective measures, intended to prevent a threatened infringement or to stop an actual infringement.

An award of damages by the Unified Patent Court will be compensatory and take into account the lost profits of the patent holder; the profits made by the infringer; or the royalties or fees that the patentee would have received but for the infringement.


Stanislas Roux-Vaillard is a counsel at Hogan Lovells in France. He specializes in patent litigation, representing international clients notably in the field of life sciences, telecommunications and chemistry. Stanislas was admitted to the Paris Bar in 2002. He is the author of a doctorate thesis on the comparison of U.S. and French case law on patentability requirements (2001) and also holds a U.S. LL.M. in Intellectual Property (2000).

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