Written by: Caleb Gilliam-Scott
The Unified Patent Court (UPC) has released draft mediation and arbitration rules in preparation for the commencement of its Patent Mediation and Arbitration Centre (PMAC), with seats in Slovenia and Portugal.
The draft mediation rules are open to public consultation until 21 July 2025, whilst the draft arbitration rules can be commented on until 04 August 2025.
Both sets of rules are designed to support patentees in resolving complex patent disputes efficiently and securely by means of alternative dispute resolution (ADR), encompassing mediation and arbitration.
Mediation is ideal for patentees seeking negotiated outcomes, maintaining business relationships, or exploring settlements confidentially.
Arbitration is more advantageous where patentees require a final, enforceable resolution, particularly in cross-border disputes or where injunctive relief, royalties, or portfolio-wide determinations are at stake.
Parties can be referred to ADR by UPC suggestion, or on their own initiative. The PMAC will offer an ADR information session, which is free, online, and confidential, in order to explain the benefits and logistics of mediation/arbitration.
Comparisons between the two processes as proposed by the draft rules are outlined below:
In both processes, the parties are required to deposit an equal share of an advance on costs.
Both proceedings also include rules for enhanced confidentiality considerations for Fair, Reasonable, and Non-Discriminatory (FRAND) licenses in Standard Essential Patents (SEP) disputes, which can include appointment of a confidentiality advisor, restricted access to confidential information, and non-disclosure agreements.
Whilst mediation is facilitated by a neutral mediator without decision-making power, arbitration is handled by a tribunal. Interim relief is available to parties in arbitration, including from an emergency arbitrator if the main tribunal has not yet been constituted.
Arbitration also includes explicit provisions for expedited procedures where claims are less than €1,000,000 in value. The expedited procedure is handled by a sole arbitrator, rather than by tribunal.
For both types of ADR a draft Article 2(2) proposes that:
“Pursuant to Rule 365 and Rule 11.2 of the RoP, the UPC shall, if requested by the parties, by decision confirm the terms of any settlement or arbitral award by consent, reached using the facilities of the Centre, including a term which obliges the patent owner to limit, surrender or agree to the revocation of a patent or not to assert it against the other party and/or third parties.”
Accordingly the UPC can enforce a decision that confirms the terms of any settlement or arbitral award by consent. At present, any enforcement of such confirmatory decisions reached in international mediation or arbitration needs to go under the process outlined by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). The new rules thus allow for easier enforcement in the UPC member states.
Having reviewed both sets of rules for the different proceedings, it does appear that there are some differences in wording for corresponding provisions that should be brought into conformity in order to provide a uniform approach.
Both sets of rules have however, been drafted with reference to international benchmarking materials in order to align with and benefit from best practices developed by similar ADR bodies.
The start of operations at the PMAC and the adoption of final rules following the consultations will enable the UPC to provide alternatives to litigation in patent disputes, increasing flexibility for parties.
