European Patent Litigation in the Shadow of the Unified Patent Court

European Patent Litigation in the Shadow of the Unified Patent Court

Luke McDonagh

With the introduction of the Unified Patent Court (UPC) and the new European Patent with Unitary Effect, the European patent litigation system is undergoing a set of fundamental reforms. This timely book assesses the current state of European patent litigation by analysing recently published data on Europe's four major patent jurisdictions - the UK, Germany, France and the Netherlands - and also looks ahead to examine what the impact of the UPC is likely to be on Europe's patent litigation system in the near future.

Chapter 3: Analysing the reforms: the Unified Patent Court (UPC) and the European Patent with Unitary Effect (UP)

Luke McDonagh

Subjects: law - academic, constitutional and administrative law, european law, intellectual property law


The previous chapter established the extent of the fragmentation of the current patent litigation system in Europe, including the issues of inconsistency of decision making across jurisdictions and the costs of parallel litigation. It almost goes without saying that ‘a more efficient and less expensive litigation system is desirable’. For this reason, unifying the patent system has for decades been a goal of the European Union; yet progress towards this goal was slow until finally, on 19 February 2013, 25 members of the European Union signed an intergovernmental agreement (‘the Agreement’) to create a Unified Patent Court (UPC) – a new specialist patents court common to participating states. The UPC Agreement is part of a package of measures designed to establish and enforce unitary patent protection within Europe. The aim of the establishment of the UPC is to offer a more streamlined, less costly and easy-to-use system with the ambition of unifying the European patent system as much as possible. In addition to the UPC Agreement, the new reform measures also include two EU regulations which establish the European Patent with Unitary effect – a.k.a. the Unitary Patent (UP) – and the associated translation arrangements. As explored over the course of this chapter, the application and grant process for the UP will be the same as for the regular European Patents (EPs) – the option for unitary protection across participating EU member states comes post-grant.

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