Structure and functioning of the UPC (Unified Patent Court)
The Unified Patent Court consists essentially of a court in the first instance and a court of appeal. The court of first instance is composed of several local and regional divisions (distributed in the UPC member states) and a central division. The central division has its seat in Paris and Munich, the court of appeal has its seat in Luxembourg. The jurisdictions of the divisions are explicitly regulated in the UPC Convention.
Outstanding role for Germany - member state with largest capacities for UPC proceedings
Currently, 12 local divisions are set up in the EU, with 4 local divisions (Hamburg, Dusseldorf, Frankfurt, Munich) in Germany, which is by now the most important court jurisdiction for patent infringement proceedings in Europe.
Which language of proceedings will be relevant in the divisions?
In principle, the language of proceedings before a local or regional division is in general the official language of the UPC member state in which the division is located. The relevant UPC member state may permit the use of additional languages. The majority of states will allow English as an additional language of proceedings before their divisions, most likely also Germany. With the consent of the court, the language of proceedings may also be the language of the patent.
Before the central division, the language of proceedings is always the language in which the patent was granted.
Before the Court of Appeal, the language of proceedings is the language of the first instance, unless the parties agree on the language of the patent. With the consent of the parties, another official language of a UPC member state may also be designated as the language of proceedings.
Good to know: The rather complex UPC Agreement allows for exceptions to the above principles in a flexible manner (e.g. small local operator clause, Rule 14.2(b) UPC), if they are appropriate under the specific circumstances of the case.
How is the court competence between central, local and regional divisions regulated?
In principle, infringement actions are to be brought before the local or regional division at the seat of the defendant or at the place of the actual or threatened patent infringement.
The central division is competent for infringement actions if the defendant has no seat in a contracting member state or if there is no local or regional division in the contracting member state concerned.
Actions for revocations of patents as well as actions for declarations of non-infringement of patents (DNI) are in principle to be brought before the central division.
Specials of UPC Litigation
Important: However, contrary to German law, counterclaims for invalidity must be brought before the local or regional division where the infringement action is already pending. It is at the discretion of the local or regional division to decide on both actions, to refer the counterclaim for invalidity to the central division (bifurcation), or to refer the case in its entirety to the central division with the consent of the parties.
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