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Will 2018 be the year of the Unified Patent Court?

Australian patent applicants considering protection in Europe should familiarise themselves with the proposed new Unified Patent Court (UPC) that may be coming into effect this year.

The UPC is a new European court system that will have jurisdiction to conduct infringement and revocation proceedings for all European patents, including the proposed new European unitary patents. Decisions of the UPC will be binding across all participating states.

Having centrally conducted litigation and revocation proceedings will provide some advantages to patentees in Europe. Currently, under the existing European Patent Convention (EPC) system, national courts of member states are competent to decide on the infringement and validity of European patents. This can lead to diverging decisions, lack of legal certainty and so-called “forum shopping” by persons seeking to assert and attack the validity of European patents. The single UPC will, hopefully, resolve these issues and create a single body of consistent procedural and substantive case law.

On the other hand, it is possible that centrally conducted proceedings may, in certain circumstances, cause problems for patentees. They may, for example, find themselves having to defend a patent in a foreign country where the proceedings are not necessarily conducted in their first language. Also, having a unitary patent invalidated in the UPC will lead to loss of protection in all member states of the system.

The legislation establishing the UPC provides that all existing European patents will automatically come under its exclusive jurisdiction. This will, however, be subject to transitional arrangements. For a period of seven years after the legislation comes into force, infringement and revocation actions for existing European patents will still be able to be brought before a competent national court of an EPC member state. Also, it appears that proprietors and applicants of European patents that are granted or applied for during this transitional period will also be able to opt out of (and opt back into) the exclusive competence of the UPC freely during the transitional period.

The UPC won’t come into effect unless and until all participating signatory states have ratified the system. A commencement date of 1 December 2017 was initially anticipated but 2018 is looking more likely.


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