UPC-series: Unified Patent Court: It’s been 6 months!

June 1st of 2023 the UPC opened its doors for the first time, after long-lasting negotiations among the EU-members and numerous dead-ends. As to the day of writing, more than 16.000 Unitary Patents have already been registered according to the EPO statistics center. Conflicts arising from any Unitary Patent fall under the jurisdiction of the UPC. Thus, this means greater engagement of the UPC in the patent world.

The active cases in the UPC are more than 100 and they have mostly to do with electronics and engineering. As of 17 November 2023, 137 cases were registered in the Registry of the UPC. Contrary to all predictions, the medical sector powerfully entered the patent litigation arena. Moreover, cases relative to the medical sector are the ones that have intrigued the more difficult questions regarding the RoP of the UPC and drove the judges through these uncharted waters. Another won bet is the fact that the UPC did not transform to an elite litigation system, as it was supposed to, due to the admittedly high fees compared to the EPO opposition procedure. It seems that small and medium size companies prefer the UPC as well, mainly because of the unified enforcement of the decision though the UPC member-states.

In terms of “couleur locale” the first disagreements start arising on the occasion of transparency and publicity of the documents of the proceedings before the UPC. The majority of the case have been brought before German local divisions and especially Munich, thus keeping the long tradition of the German expertise in patent litigation.

The number of opt-outs preserve a rate of about 5.000 per month and even though this rate was a lot higher at the beginning, it constantly decreases. Given that the opt-out can be withdrawn and turn into an opt-in, the UPC can regain jurisdiction anytime the patentee choses to activate the UPC litigation system. Still, there is serious possibility to be locked out forever, as the Helsinki Division recently indicated in its decision concerning the Supponor vs. AIM Sport case  (see GEISTWERT-blog here). Consequently, patentees that are more likely to opt-out, should calculate all factors before taking such a bold decision.

All in all, the new UPC regime serves its purpose and continues to walk its way through success. It can be broadly admitted that the UPC is the new hot spot of patent litigation. More developments will follow the next months, thus giving a clear picture and hopefully paving the way for other EU-states to become members of the UPC.

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