On the 1st June 2023, the Unified Patent Court (UPC) will come into force. Created by the Agreement on a Unified Patent Court (UPCA) which was signed in 2013, it is the culmination of decades of political efforts to create a common patent court for participation by members states of the European Union. Evidently affected by Brexit, and the resultant inability of the UK to participate, it still strives to provide a streamlined and efficient mechanism for post-grant actions involving European patents. When it opens its doors in June it will initially hear cases involving infringement and revocation actions, and a single court ruling will be directly applicable in the EU member states which have ratified the agreement- currently 17 member states.
The focus of this Court is patents – and only patents. It will have both legally and technically qualified judges. They will be trained centrally to ensure consistency in judgement. They will sit in panels of three at the Central Courts of First Instance, or five in the Court of Appeal. Currently there are 34 legally appointed judges and 51 technically appointed judges. The structure appears well thought out and rationalised. It will base its decisions on EU law, the European Patent Convention, the UPCA, other international agreements applicable to patents, and national law.
All in all, the UPC is to be welcomed as an adjudicating body in Europe for patent matters in Europe. Why then, has the European Union recently announced that it is not the UPC but the EU Intellectual Property Office (EU IPO) that will maintain a register of Standard Essential Patents (SEPs) and oversee royalty rate settings for those patents. The EU IPO has proven to be a very effective organisation for delivery of unitary trade mark and design rights across Europe – but has no experience of patents.
The UPC, an organisation which has been populated with technical experts in patent law and the underlying technical subject matter of these patents would appear to have been a more logical choice for such an adjudication body, if such a body was even needed. The question as to why it is being side tracked to allow the EU IPO, which has no practical expertise in this specialised area, to take control needs to be asked. It could well be that the Commission have considered that the UPC would be conflicted by adjudicating on royalties at the same time as having a primary purpose to assess infringement of potentially the same patents. It could equally well be that it was simply not considered on the basis of a lack of understanding as to what the EU IPO currently do. The lack of explanation as to why the EU IPO is being selected, or even the plan for how it will operate in parallel with the UPC, the EPO, and the CJEU on these matters is not clear. With absent clarity of purpose, this plan can only create uncertainty – the exact opposite of what patent right holders thought they were getting in 2023 with the birth of the UPC.
Two IP’s patent attorneys have expertise in drafting and prosecuting telecommunications related patents, including standard essential patents. Get in touch here if you require assistance in this technology
