Unified Patent Court and Unitary Patent
The Unified Patent Court (UPC) and the Unitary Patent represent the most significant reform of the European patent system since the European Patent Convention of 1973. The Unitary Patent system provides for a single patent with unitary effect across all participating Member States, while the UPC serves as a specialised international court with exclusive jurisdiction over Unitary Patents and certain classic European patents. The system became operational on 1 June 2023, following the ratification of the Agreement on a Unified Patent Court (UPCA) by the required number of Member States.
Legal Basis and Participating States
The Unitary Patent is established by two EU regulations adopted under enhanced cooperation: Regulation (EU) 1257/2012 on Unitary Patent Protection and Regulation (EU) 1260/2012 on the applicable translation arrangements. The UPCA is an international treaty concluded outside the EU legal framework, signed on 19 February 2013 by 25 Member States.
As of 2026, 17 Member States have ratified the UPCA, including Germany, France, Italy, the Netherlands, and Sweden. Spain and Poland do not participate. The United Kingdom, initially a signatory, withdrew following Brexit and does not participate in the system. The UPC has jurisdiction over Unitary Patents and over classic European patents granted by the European Patent Office (EPO), subject to an opt-out possibility for the latter.
Structure of the Unified Patent Court
The UPC is a court common to the participating Member States, comprising a Court of First Instance, a Court of Appeal, and a Registry. The Court of First Instance is organised into a Central Division (with seats in Paris, Munich, and a seat to be established in Milan), and Local and Regional Divisions established in participating Member States. Local Divisions exist in Germany (multiple), France, Italy, the Netherlands, Belgium, Denmark, Finland, Austria, and Sweden. The Nordic-Baltic Regional Division covers the Baltic states.
The Court of Appeal is based in Luxembourg. The Court of Justice of the EU (CJEU) has no appellate jurisdiction over the UPC, though the UPCA reserves the possibility of preliminary references to the CJEU on matters of EU law.
Jurisdiction and Competence
The UPC has exclusive jurisdiction in respect of Unitary Patents, including infringement actions, revocation actions, declarations of non-infringement, provisional and protective measures, and actions for damages. For classic European patents, the UPC has exclusive jurisdiction unless the patent proprietor opts out.
The transitional period under Article 83 UPCA lasts seven years (extendable to 14 years). During this period, actions for infringement or revocation of a classic European patent may still be brought before national courts. The patent proprietor may opt out by notifying the Registry at any time before an action is brought before the UPC.
The Sunrise Period and Opt-Out
Before the UPC became operational, a “sunrise period” of three months allowed European patent holders to opt out of the UPC’s jurisdiction. During this period, patent proprietors could file opt-out applications with the Registry, ensuring their patents would remain subject to the exclusive jurisdiction of national courts.
Opt-out may be withdrawn unless an action has already been brought before a national court. The opt-out mechanism has generated substantial strategic practice, with patent proprietors carefully assessing their portfolios and litigation exposure. The default position is that European patents are subject to UPC jurisdiction unless the proprietor opts out.
Unitary Patent Protection
The Unitary Patent is a European patent granted by the EPO under the European Patent Convention that, after grant, is registered for unitary effect. The unitary patent provides uniform protection across all participating Member States, eliminating the need for national validation in each country. The EPO is responsible for administration, including renewal fee collection.
Translation requirements are simplified: the patent is maintained in the language of the EPO proceedings (English, French, or German). During a transitional period, additional translations may be required in case of litigation.
Key Procedural Features
The UPC Rules of Procedure establish an efficient and harmonised litigation framework. Key features include: a bifurcated system (the Central Division may bifurcate infringement and validity; Local Divisions generally hear both together); strict time limits (first instance proceedings are expected to conclude within 12 months); preliminary injunctions (Article 62 UPCA); and proportionality in remedies and costs.
The losing party generally bears the costs of the prevailing party, subject to limits based on the value of the dispute. The Court may order disclosure of evidence, preservation of evidence (saisie-contrefaçon), and freezing orders.
Case Law Development
The UPC has begun issuing decisions since June 2023. Early case law has addressed the standard for preliminary injunctions (10x Genomics v Nanostring, UPC_CFI_1/2023), procedural aspects of the opt-out, and the interpretation of Article 25 UPCA on direct infringement. The Court of Appeal has established important principles on the uniform interpretation of patent law across participating states.
Relationship with the EPO
The Unitary Patent system does not replace the classic European patent. Applicants may choose between a Unitary Patent, a classic European patent validated in selected states, or national patents. The EPO continues to examine and grant patents under the European Patent Convention. The Unitary Patent adds an optional post-grant effect, representing the culmination of decades of political and legal efforts to create a truly integrated patent system in Europe.