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How Will Patent Litigation in the UPC Compare to Litigation in National Courts?

Publications / Dec 24, 2015

Patent proceedings before national courts of European Union (EU) member states vary considerably as they are based on very different legal traditions. There are several examples of features in national procedures which are particular to one European jurisdiction, such as the extensive use of experts and disclosure in English cases or split proceedings (infringement and validity) in Germany.

The UPC, by contrast, is to be a unified institution, potentially for the whole of the EU, and will have its own single comprehensive set of procedural rules (Rules of Procedure) which will govern the way cases are run in all the UPC’s divisions across Europe. The aim is to provide a harmonised approach to patent litigation across the UPC area, a fundamental aim of the UPC.

The initial part of the proceedings will be written, and the rules foresee a number of steps for the parties to follow, according to a specified timeline. Statements of case and communications by/to the court and registry will be submitted mostly by electronic means. After the closure of written proceedings, preparations for the oral hearing(s) will begin and the proceedings will culminate in a hearing, lasting usually only one day. Throughout the proceedings judges will apply an active case management and, within the rules, will tailor the proceedings according to the issues of the case. The rules aim for completion of proceedings within one year of the start of the action.

Despite the push for harmonisation the rules allow a degree of flexibility in relation to the use of particular procedural elements to reflect the legal traditions of the different jurisdictions (“couleur locale”), depending on the issues in the case. How this is applied by judges in the various divisions will not be clear until the court has been operational for a few years.

Apart from procedural differences, litigation before the UPC will also differ from that before national courts by the very fact that it will operate on a European level, rather than a national level – its decisions will have effect across all participating countries. Not only will the UPC have powers to obtain evidence and make orders with effect across Europe, but decisions of the UPC will be enforceable in the relevant states as if they were decisions of the corresponding national courts. In short, the UPC is set to be a powerful institution.

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