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Which Powers Will the New Court Have?

Publications / Dec 24, 2015

In view of their pan-European nature the impact of the UPC’s decisions are likely to be very powerful. By raising patent disputes to a European level, and adjudicating on issues such as infringement and validity, as well as damages and injunctions, for several states simultaneously, the stakes are raised for both parties: the patentee will run the risk of centralised revocation of all patent rights across the EU, while the defendant will run the risk of increased damages or an injunction based on multi-jurisdictional infringement.

The UPC will have a wide palette of powers. It can revoke the patent entirely or partially, or can issue an injunction or award damages against an infringer. The UPC will also be able to issue preliminary injunctions ex parte, in given circumstances. It will be able to make orders concerning the obtaining of evidence including by seizure.

In running a case the court will exercise its powers of case management and will be able to modify the procedures accordingly.

Orders by the UPC will be directly enforceable in each participating EU state, with enforcement occurring on the same terms as if it had been made by the relevant national court. The UPC will effectively act like a national court in each participating state.

We shall have to see how the UPC divisions apply their powers. At the moment we don’t know, for example, what will be the new court’s propensity to allow injunctions (which varies widely among national courts) or how it will apply the rules for determination of damages or, indeed, how it will decide in areas where national courts current have differing approaches on substantive issues. However, it is clear that the powers given to the UPC are potentially very considerable, not least because of the pan-European nature of its decisions.