Clifford Chance

After years of planning and a lot of uncertainty, the UPC has finally opened its gates. The new court presents itself as an attractive venue for patent litigation – even more so with recent developments around the start in the beginning of June. With the number of cases being manageable and allowing for quick decisions as well as English finally being accepted as a language of proceedings in all chambers, the UPC is off to a good start.

The wave of cases seems surfable – the UPC retains the capacity to settle patent litigations quickly

One of the most attractive features of the UPC is its promise to deliver legal certainty to patent disputes in the form of an oral procedure swiftly followed by a decision within – in general – twelve months. This aim is supported by strict deadlines for written submissions which are in general due after only two or three months and a limitation to two rounds of exchange of written submissions.

However, during the sunrise period preceding the start of the UPC, there had been significant doubt as to whether that promise would remain redeemable in the case of a significant wave of cases breaking into the new court system. The legally qualified judges that (mostly) work part-time for the UPC and in addition serve in the Pool of Judges to support the 14 local/regional chambers have a limited availability. In combination with some of the part-time legally qualified judges being busy with cases at their respective national courts, the UPC's capacity to handle a higher caseload seemed uncertain. Plaintiffs feared that the court might be overwhelmed and that many infringement actions brought even in the first days of the UPC would congest the system potentially for years, making some applicants hesitant to entrust the UPC with the enforcement of their patent rights.

As of mid-June however, a manageable amount of around 20 cases have been reported in total. About two-thirds of these cases have been filed with local chambers in Germany, with most of them accumulating in the local chamber of Munich. The remaining cases are spread out over the Nordic Baltic Regional Division and the Central Divisions of Paris and Munich. Not surprisingly, the German local chambers were thus able to obtain a significant share of cases, potentially shaping future case law significantly.

If the UPC will be able to keep its promise of delivering quick results, this could likely raise the number of cases that will be filed with the UPC.

English became an option for parties at all chambers

Another advantage which is likely to attract more cases in the months to come may be the last-minute decision on the morning of the UPC start by France, Italy, and Germany to allow English as a language of proceedings in infringement cases according to Art. 49 para. 2 of the Unified Patent Court Agreement ("UPCA"). During the sunrise period, there had been extensive discussions and at least the German local chambers showed mixed enthusiasm about supporting English as a language of proceedings even if agreed upon by the Parties. Eventually, a last-minute understanding on supranational level seems to have resolved the situation.

English may now be chosen as the language of proceedings in all divisions of the UPC, together with local languages except for the Nordic Baltic Regional Division which provides solely for English as the language of proceedings. The current rule allows for claims and briefs to be submitted in English, whilst the judge-rapporteur may order, in the interest of the panel, the respective local language as the language of oral proceedings and decisions with certified translations attached. 

This constitutes an obvious advantage for international disputes – efficiently reducing delays and costs for translations. In addition, more cases in English allow for a greater flexibility of judges handling cases as the availability of judges with different nationality to the respective local chamber and able to manage proceedings will be higher than for cases in other languages.

Patents with unitary effect are sought after

The EPO reports that so far 800 requests for unitary effects have been registered as well as 4.500 requests for deferred publication, retaining the right to grant these as European Patents with unitary effect in June and early July. Of course, other than regular European Patents, European Patents with unitary effect cannot be opted-out of the jurisdiction of the UPC. The growing figures regarding European Patents with unitary effect may therefore be interpreted as a sign of trust in the new patent system.

For regular European Patents, the freedom to opt-out from the exclusive jurisdiction of the UPC remains during the seven-year transitional period according to Art. 83 Nr. 3 UPCA, provided that such patents have not become subject to proceedings before the UPC.

A solid kick-off promises a bright future for the UPC

With all openings for legal judges filled in time and – despite three resignations in June – a broad field of specialized technically qualified judges, the UPC is up and running. With a manageable number of cases filed so far, the UPC's ambitious goal to provide a time efficient, Europe-wide forum for patent litigation seems achievable. Recent developments such as the last-minute changes regarding languages and the increasing number of European Patents with unitary effect suggest overall optimism towards the UPC as new playing field.