• A Unitary Patent (or “European Patent with unitary effect”) allows patent applicants to acquire unitary patent protection in all countries which are Unitary Patent Participating Member States.     
• Applicants are entitled to apply for a national patent, a European Patent and/or a Unitary Patent.
• The initial examination and registration procedure for Unitary Patents involves applying for a European Patent at the European Patent Office. Applicants have one month from publication of the grant of the European Patent to file a “request for unitary effect”.
• A Unitary Patent provides uniform protection and has equal effect in all Unitary Patent Participating Member States. A Unitary Patent can be limited, transferred or revoked only in respect of all Participating Member States. However, a Unitary Patent may be licensed for all or some of the territories of the Unitary Patent Participating Member States.

• In terms of the overall costs, a Unitary Patent is less expensive than a European Patent validated and maintained in four Member States.
• The costs of the examination phase of a Unitary Patent before the European Patent Office are the same as those of a European Patent, but translation costs are lower because only one additional translation will be required for Unitary Patents.
• To maintain a Unitary Patent, the patent proprietor also has to pay annual renewal fees. The renewal fees for Unitary Patents have been set based on the renewal fees currently paid for the countries in which European Patents are most frequently validated today. They range from 35 EUR in the 2nd year to 4 855 EUR in the 20th year. Compared to the costs of a classic European Patent validated and maintained in all 25 Member States participating in the Unitary Patent system, the renewal fees for a unitary patent amount to only a fraction (e.g., less than a quarter in the 20th year). However, for European Patents designating only a limited number of Member States (typically less than four states), the renewal fees of a European Patent may be cheaper.
• Read more on the EPO’s website.

• The UPC consists of:

•  A Court of First Instance, which includes:

• A central division.

• Local and regional divisions (which can be set up on request by one or more contracting Member States: one division for every hundred patent cases commenced in the contracting Member State per year).

• A Court of Appeal in Luxembourg.
• A Patent Mediation and Arbitration Centre (in Ljubljana and Lisbon).

• A Training Facility for judges (in Budapest).

• Note that the Court of Justice of the European Union is able to receive requests for preliminary rulings on matters of European Union law from the Court of First Instance and the Court of Appeal. Its role is to ensure the correct and uniform interpretation of Union law, and its decisions are binding on the UPC.

General jurisdiction of the UPC

The UPC has exclusive jurisdiction over cases regarding:

• Unitary Patents

• Infringement and revocation actions concerning Unitary Patents cannot be brought before national courts.

• European Patents (except if the proprietor has opted-out: see FAQ 7)

• However, during the transitional period (7 years from the date of entry into force of the UPC Agreement, extendable by an additional 7 years), the UPC and national courts have a shared jurisdiction to hear cases regarding European Patents (except if the proprietor has opted-out).

• Supplementary Protection Certificates (SPCs) issued for a product protected by a Unitary Patent or a European Patent (except if the proprietor of the patent has opted-out).

The UPC is entitled to:

• Grant provisional or permanent injunctions applicable in all Unified Patent Court Contracting Member States.

• Revoke Unitary Patents and/or European Patents with effect in all Unified Patent Court Contracting Member States.

Jurisdiction of the divisions of the UPC (Forum Shopping)

Infringement

• Local or regional division of the place of infringement, or

• Local or regional division of the defendant’s domicile.

Revocation and declaration of non-infringement

• Central division.

• Local or regional division if an action for infringement between the same parties and relating to the same patent is pending before this division.

Non-EU defendant

• Local or regional division of the place of infringement, or

• Central division.

General rules

• If an action for infringement is brought before a division, any other action between the same parties relating to the same patent shall be brought before the same division.

• The parties may agree to bring an action before the division of their choice, including the central division.

Bifurcation

• Special regime applicable to revocation claims in case of pending infringement action before a regional or local division between the same parties and relating to the same patent.

• 3 options for the regional or local division:

1. Proceed with both the infringement and revocation,

2. Refer the whole case to the central division (with parties’ approval),

3. Refer the revocation claim to the central division and:

a. Stay the infringement action, or

b. Proceed with the infringement action.

The applicable laws include:

• European Union law, including Regulation No 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection, and Regulation No 1260/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements.
• Agreement on a Unified Patent Court of 19 February 2013.
• European Patent Convention.
• Other international agreements applicable to patents and binding on all the Contracting Member States.
• National law.

Factors relating to the applicable law:

• The Agreement on a Unified Patent Court contains statutory provisions regarding infringement.

• Validity is assessed based on the European Patent Convention.
• National law applies to Unitary Patents as objects of property (ownership, licences, etc.).
• UPC can request preliminary rulings from the CJEU on matters of European Union law.

For Unitary Patents: No

• UPC exclusive jurisdiction is mandatory.

For European Patents: Yes

• European Patent proprietors may opt-out from the jurisdiction of the UPC, on a patent-by-patent basis, in which case national courts remain (exclusively) competent for the lifetime of the patent.

• Opt-out is admissible from the entry into force of the protocol for a provisional application of the UPC Agreement (see FAQ 11 and below) and until the expiration of a transitional period of 7 years from the date of entry into force of the UPC Agreement and as long as no action has been brought before the UPC.

• Locked-in situation: once an action (whether pending or concluded) has been brought before the UPC, the opt-out is no longer admissible.

• The opt-out can be withdrawn as long as no action has been brought before a national court.

• Locked-out situation: Once an action has been brought before a national court, it is no longer possible to withdraw the opt-out.

• No opt-out fees.

Infringement Action Timeline (if no counterclaim for revocation)

Infringement Action Timeline (with counterclaim for revocation and no bifurcation)

According to the Table of Court Fees issued on 8 July 2022:

• Infringement and revocation actions (or counterclaims) before the UPC require the payment of court fees, consisting of a fixed fee and, for certain claims, an additional value-based fee.

• The fixed fee for claims relating to infringement (infringement action, counterclaim for infringement, action for declaration of non-infringement, action for compensation for licence of rights) is €11,000 and an additional fixed fee of €3,000 is due for applications to determine damages.

• In respect of the above actions that exceed a value of €500,000, additional value based fees is due, ranging from €2,500 (for values up to and including €750,000) to €325,000 (for values exceeding €50,000,000).

• A fixed fee of €20,000 is due for an independent revocation action.

• For counterclaims for revocation, the fee is the same as the fee of the related infringement action, subject to a €20,000 cap.

• Additional fees are due for appeal proceedings.

• Small and micro-enterprises are entitled to pay only 60% of the respective fee.