What is the structure of the Unified Patent Court?
The new Unified Patent Court will have exclusive competence to decide, inter alia, on the infringement and validity of EP's and Unitary Patents (cf. also UPC Viewpoint "What is the jurisdiction of the UPC?" by Katie McConnell). The draft Agreement on a Unified Patent Court (the "Agreement") provides for the establishment of an entirely new court structure for patent litigation with EP's, Unitary Patents and SPC's.
1. GENERAL STRUCTURE AND SEATS
1.1 The Unified Patent Court comprises a Court of First Instance and a Court of Appeal. An illustrative chart of the court structure and the composition of the panels is enclosed as Exhibit.
1.2 The Court of First Instance includes
(a) a central division and
(b) local divisions (for each contracting state) or regional divisions (for two or more contracting states if they prefer to establish a common division).
1.3 The central division will be seated in Paris and have sub-divisions in London and Munich. The sub-division in London will hear cases related to chemistry including pharmaceutical and human necessities (patent classifications A and C). The sub-division in Munich will deal with cases related to mechanical engineering (patent classification F).
1.4 The location of the Court of Appeal is Luxembourg.
2. JURISDICTION OF DIVISIONS
2.1 As a rule of thumb, the central division is competent to hear stand-alone nullity patent actions, whereas patent infringement cases are brought before the local or regional division where the infringement occurred or where the defendant is seated. An illustrative chart of the jurisdiction rules is enclosed as Exhibit.
2.2 The local or regional divisions will hear the following actions:
(a) infringement actions including counterclaims concerning licences,
(b) actions for provisional and protective measures and injunctions,
(c) actions for damages or compensation derived from the provisional protection conferred by a published patent application,
(d) actions relating to the use of the invention prior to the granting of the patent or to the right based on prior use of the patent.
2.3 The following actions shall be brought before the central division unless an infringement action is pending between the same parties and related to the same patent (in which case the local or regional division where the infringement matter is pending shall be competent to also deal with this action):
(a) actions for declarations of non-infringement (the central division stays the case, though, once an infringement action related to the same patent between the same parties is initiated before the local or regional division),
(b) actions or counterclaims for revocation of patents,
(c) actions for the grant or revocation of compulsory licences,
(d) actions on compensation for licences,
(e) actions against defendants domiciled outside the territory of the contracting states.
2.4 If an infringement action is pending before the local or regional division and a counterclaim for the revocation of the patent-in-suit is initiated, the local or regional division has the discretion
(a) To proceed with both the infringement case and with the counterclaim for revocation (and request the President of the Court of First Instance to allocate a technically qualified judge with qualifications and experience in the field of technology concerned), or
(b) to refer the counterclaim for revocation to the central division and then suspend or proceed with the infringement case, or
(c) with agreement of the parties, to refer the entire case to the central division.
3. COMPOSITION OF THE PANELS
3.1 The panels of the Unitary Patent Court shall be multinational, i.e. composed of judges with nationalities from different contracting states.
3.2 The panels will comprise the following number of legally and technically qualified judges:
(a) Local and regional divisions of Court of First Instance:
- three legally qualified judges or just one if the parties agree,
- additionally one technically qualified judge upon the parties' request or upon the panel's initiative.
(b) Central division of Court of First Instance:
- two legally qualified judges or just one if the parties agree,
- one technically qualified judge.
(c) Court of Appeal:
- three legally qualified judges,
- two technically qualified judges.
By Hogan Lovells counsel, Dr. Sabine Boos