The introduction of the Unitary Patent (UP) and the Unified Patent Court (UPC) has been one of the most significant developments in European patent law since the adoption in 1973 of the European Patent Convention (EPC), also known as the Convention on the Grant of European Patents.

The Unitary Patent System was adopted after several decades of negotiations, the original idea having been to give unitary and autonomous effect to European patents between Member States dating back to 1975 with the signature by the Member States of the then European Economic Community of the Convention for the European Patent for the Common Market.

As the result of a compromise, the unitary patent system that will soon be operational is rather complex due to its asymmetry and its coexistence with European patents granted by the European Patent Organisation (EPO) and national patents, thus creating a multi-layered system of patent protection in Europe. The European Patent with Unitary Effect, more commonly known as the Unitary Patent is based on an EU legal framework.Footnote 1 It will however be granted by the European Patent Organisation, which is an international organisation.Footnote 2 The Unitary Patent will benefit from unitary effect in the participating Member States of the European Union. After a European patent (a bundle of national patents) is granted by the European Patent Organisation, the patent proprietor will be able to request unitary effect, thereby getting a Unitary Patent which provides uniform patent protection. Due to the EU’s system of enhanced cooperation,Footnote 3 this protection does not currently however cover the entire European Union: it is limited in geographical scope to twenty-five EU Member States.Footnote 4 A key objective of this system is to reduce costs for patentees with a single relatively low renewal fee and costs savings in translation, particularly for SMEs, non-profit organisations, universities and public research organisations.

Under an international agreement called the Agreement on a Unified Patent Court (AUPC) signed in 2013, a new Court will be set up to decide on the infringement and validity of Unitary Patents and “classic” European patents. National patent courts will remain competent for national patents.

The Unified Patent Court (UPC) will necessarily bring about profound changes to the European patent litigation landscape.

As a specialised court common to (currently) seventeen participating Member States (and potentially up to twenty-four States of the European Union),Footnote 5 it will allow patent enforcement in centralised court proceedings in adopting rulings that will apply in all Member States that have ratified the Agreement on a Unified Patent Court.

The asymmetric system that will be put in place will bring complexity in practice, particularly during the transitional period.

The Unified Patent Court will have exclusive jurisdiction over disputes involving a Unitary Patent and concurrent jurisdiction with national courts to handle patent disputes involving a European patent for a transitional period of seven years (which may be extended up to fourteen years). After the transitional period, the Unified Patent Court will also have exclusive jurisdiction over European patents in the participating EU Member States. Only national patents will remain outside the jurisdiction of the UPC. During this transitional period, patent holders of European patents will have however the faculty to opt out from the competence of the Unified Patent Court, as long as proceedings have not already been brought before the Court. However, once a UPC court is seized of an action, the European patent cannot be opted out of. Ratione loci competences will therefore probably be at the heart of the first contentious cases on the Unitary Patent.

The complexity and multi-layered nature of the patent system in Europe will be outweighed by a certain number of benefits. By establishing an effective forum for enforcing and challenging patents in Europe, the Unified Patent Court is expected to mitigate parallel litigation in different countries, to enhance legal certainty through harmonised case law in the area of patent infringement and validity, and to provide quicker judicial procedures.

The Unified Patent Court will have unique European procedures, drawing on the best practices of existing national systems. It will create unprecedented procedures for patent litigation in Europe.

Participation in this new system requires that Member States sign and ratify the Unified Patent Court Agreement and its Protocol for Provisional Application.

After several twists and turns caused by the combined effect of (a) three actions being brought before the European Court of Justice; (b) the United Kingdom exiting from the European Union; and (c)two judicial reviews being conducted by the German Constitutional Court – all of which considerably delayed the start of the new Court system – the Unified Patent Court Agreement which has now been ratified by enough Member States (including the so-called “mandatory Member States” of France and Italy), will enter into force on the first day of the fourth month after the deposit of the German instrument of ratification (the third “mandatory Member States”). The political decision from Germany to ratify is expected to take place as soon as the Administrative Committee of the Unified Patent Court gives the sign that the Court is operational. The timing of the start of operations of the Court depends on the progress of the preparatory work. According to the most optimistic predictions, it will not begin functioning before the end of 2022 and more realistically will operate only from the first half of 2023.

The Protocol to the Agreement on a Unified Patent Court on provisional application that entered into force on 19 January 2022 marked the relaunch of preparatory work aimed at settling the Unified Patent Court. At the end of February 2022 and after more than six years of suspension, several inaugural meetings took place, during which it was decided to relaunch the procedure to select legally and technically qualified judges competent to act before the new Court. Interviews conducted by the appointed members of the Advisory Committee started in March will be carried out in Luxembourg, Munich, and Paris until May 2022 in order to allow the Administrative Committee to appoint, later this year, judges to form panels at the different divisions of the Court. The number of vacancies to be filled for part-time functions is forty for legally qualified judges and fifty for technically qualified judges. The recruitment of a Registrar, Deputy Registrar, and Directors of the Training Centre and of the Arbitration and Mediation Centre will take place later this year.

The Budget Committee adopted the Court’s budget for the period of provisional application of the Unified Patent Court Agreement and of its workplan for the next months. As a next step, Contracting Member States taking part in the period of provisional application will be called upon to make their first contribution to the Court’s budget, under the provisions of the Financial Regulations of the Court.

In parallel, the Administrative Committee adopted important instruments of Court secondary legislation, such as the Courts Service and Staff Regulations. A medical and social security plan is being procured, the IT system, including the Case Management System and the corporate functions are being finalised, and a new website is being developed.

The Unified Patent Court Rules of Procedure are currently under revision. The main aim of these amendments as proposed in the 2017 Draft,Footnote 6 is to adapt rules to the EU legal framework which has been adopted since the last version of the draft – especially as regards cross-border judicial cooperation in civil matters (including electronic signatures, electronic proceedings, cross-border taking of evidence).Footnote 7 Rule 262 on access to the register has also been modified to facilitate open access and to comply with the General Data Protection Regulation.Footnote 8

The Rules of the European Patent Litigation Certificate (EPLC) have also been officially adopted. They are expected to enter into force in mid-June 2022. The EPLC is the professional title that European patent attorneys will need to represent parties before the Unified Patent Court.

According to Article 48 of the Agreement on a Unified Patent Court, two categories of persons will be entitled to represent parties before the Unified Patent Court. The first category includes lawyers who are authorised to practice before a court of a contracting Member State. Rule 286 of the draft rules of procedure, aligning the Unified Patent Court rules with European Union law, defines the term “lawyer” by referring to Article 1 of Directive 98/5/EC on the recognition of professional qualification in the European Union. European patent attorneys – who are entitled to act as professional representatives before the European Patent Organisation – constitute the second category of persons entitled to represent parties before the Unified Patent Court, to the extent that they can prove that they have the appropriate qualifications such as a European Patent Litigation Certificate (EPLC). With the Unified Patent Court putting in place a unique procedural system in Europe, both categories of individual will need very soon to be trained on the relevant rules of procedure and on European Union patent law.

To answer these training needs, the Academy of European Law, in cooperation with the University of Maastricht, has put in place a course offering a curriculum leading to the European Patent Litigation Certificate. A request for accreditation of the Course has been filed with the Unified Patent Court and is currently pending the decision of the Administrative Committee. ERA has a long-standing history and wealth of experience in training legal practitioners. Particularly in the field of intellectual property law, it has amassed considerable expertise and developed numerous training activities for lawyers in private practice and judges. Conferences on patent law have become a standard feature of ERA’s annual programme and have taken on an even more specific focus since the relaunch of the negotiations in 2011 to create a unitary patent system in the European Union. Maastricht, as an international university of excellence, is known both in the Netherlands and abroad for its innovative education system, its international orientation, and its research in the areas of international, European and comparative law. In partnering, ERA and the University of Maastricht have combined their strengths in order to develop professional training designed to meet the needs of patent attorneys wishing to appear before the new Court.

The nine-to-twelve months training has been conceived in the form of blended learning, mixing online and practical face-to-face sessions and ending with an examination leading to the certificate. The on-site sessions on core topics of patent litigation comprising interactive and practical exercises focussing on mock trials, role play, and advocacy will be conducted principally at ERA in Trier, with excursions to Luxembourg for a visit to a hearing at the European Court of Justice. Distance learning is envisaged for more knowledge-based, less skill-focused topics such as general European law or European private law. By connecting to Maastricht University’s e-learning environment, the participants will have full access to the literature and reading resources, and to the University of Maastricht’s digital library. Tutorials will be a key element of the training. Working via their own devices at home or in their offices, participants will be offered interactive teaching tools and live online sessions with highly-qualified trainers from the University of Maastricht and the ERA pool of experts.

It is planned that the course will start in the second semester of 2022 with face-to-face training on the basics of EU law. It will include lectures on the role of the Court of Justice of the European Union within this new European patent law architecture, followed by a visit and a hearing at the European Court of Justice, where patent attorneys will be offered a first flavour of patent litigation.