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Unitary Patent: 1 Year On

UPC one year© Alphabet IP
Introduction:

One year after its establishment, the Unified Patent Court (‘UPC’) has seen significant activity and notable trends.

English has become the predominant language for UPC proceedings, accounting for 50% of cases, while German is used in 44% of cases. This shift reflects the international nature of the court and the preference for English in many multinational legal contexts. [1]

In total, the UPC has handled 373 cases. This includes 134 infringement actions, with a significant number concentrated in German cities: Munich: 54 cases; Düsseldorf: 27 cases; Mannheim: 16 cases; Paris: 10 cases; Hamburg: 7 cases.

There have been 165 revocation actions, including 63 individual actions. The court has issued 32 provisional measures, which often involve urgent decisions such as preliminary injunctions​. [2]

A defensive strategy of initiating preemptive revocation actions in the central division has emerged, allowing the revoking party to gain an advantage. This can lead to stays or transfers of subsequent infringement actions to the central division​.

The UPC has shown a willingness to issue preliminary injunctions, both ex parte and inter partes. This has required detailed and persuasive evidence at early stages, highlighting a trend towards front-loading in litigation strategies​. [3]

A significant decision in the Ocado v. Autostore case has increased transparency by allowing third parties with a direct interest to access pleadings and evidence, subject to confidentiality restrictions. This decision balances the public’s interest in transparency with the need to protect confidential information and the integrity of the proceedings.

The UPC’s Court of Appeal has played a crucial role in defining procedural aspects, such as the necessity of including technically qualified judges in specific cases. This may reflect the court’s adaptability in handling various legal questions.

Judges and practitioners have reflected on the UPC’s first year, noting the challenges of procedural dynamics and the evolving landscape of European patent litigation.

The UPC’s commitment to swift proceedings and its structured framework are expected to contribute to its increasing success in the coming years​.

Overall, the UPC’s inaugural year has been marked by active litigation, strategic use of language and jurisdictional options, and significant procedural developments. The court is set to play a crucial role in European patent enforcement and revocation moving forward.

This article is intended for general informational purposes only and should not be considered as legal advice.

References:

[1] Unified Patent Court (UPC) – https://www.unified-patent-court.org/en

[2] Case load of the Court since start of operation in June 2023 – update end May 2024 – https://www.unified-patent-court.org/de/node/762

[3] Unified Patent Court (UPC) – https://www.epo.org/en/applying/european/unitary/upc

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