UPC already a hit with patentees in Germany

After much planning and uncertainty, the Unified Patent Court (UPC) has finally opened its gates. The new court aims to be an attractive venue for patent litigation in Europe and a viable alternative to state courts.

With a manageable number of cases – many of which have been filed in Munich – allowing for quick decisions and English being accepted as a language for proceedings in all chambers, the UPC looks to be off to a positive start.

A surfable wave of cases 

One of the most appealing features of the UPC is its promise to deliver legal certainty on patent disputes in the form of an oral procedure, to be followed swiftly by a decision within one year. This undertaking is supported by strict deadlines for written submissions, which are generally due after only two or three months and limited to two rounds of exchange of written submissions.

During the UPC’s sunrise period, there was significant doubt as to whether that promise could be kept if a large wave of cases flooded the new court system. The legally qualified judges – who primarily work part-time and serve in the pool of judges to support the 14 local/regional chambers – have only limited availability. This sparked uncertainty around the UPC's capacity to handle a higher caseload and plaintiffs voiced fears about the court becoming overwhelmed. A high volume of infringement actions brought in the court’s first days could potentially congest the system for years, making applicants hesitant to use the UPC to enforce their patent rights instead of a national court – especially those in Germany, which are held in high esteem.

As of mid-June, however, only around 20 cases have been reported as having been lodged. Roughly two-thirds of these were filed with local chambers in Germany, with the majority of these accumulating in Munich’s local chamber. The central division of Munich also received a portion of the remaining cases, highlighting the city as a key destination for UPC proceedings. The German local chambers have thus been able to obtain a sizeable share of cases, which could significantly shape future case law.

English as a language of proceedings

Another element that is likely to attract more cases in the coming months is the last-minute decision made on the morning of the UPC’s launch. Germany, along with France and Italy, chose to allow English as a language of proceedings in infringement cases according to Article 49(2) of the UPC Agreement. Previously, at least for the German chambers, only claims in German were permissible. While the German local chambers displayed mixed enthusiasm about supporting the option of using English throughout the extensive discussions – even if it was agreed upon by the parties – understanding on a supranational level appears to have resolved the language issue.

English may now be chosen as a language of proceedings in all UPC divisions as an alternative or in addition to local languages (except for the Nordic Baltic regional division, which only provides for English). The current rule allows for claims and briefs to be submitted in English, but in the interest of the panel, the judge-rapporteur may order that the local language be used for oral proceedings and decisions with certified translations attached.

This presents an obvious advantage for international disputes, efficiently reducing delays and translation costs. Further, more cases in English allow for greater flexibility for judges handling cases and thereby increases the chambers capacity, as judges of different nationalities to the local chamber will be able to manage those proceedings.

A bright future for the UPC

With all openings for legal judges filled in time and – despite three resignations in June – a broad field of specialised and technically qualified judges, the UPC is now up and running. With a manageable number of cases filed so far, the court's ambitious goal to provide an efficient, Europe-wide forum for patent litigation looks achievable. Recent developments such as the last-minute changes with regard to languages and increasing numbers of unitary patent filings suggest an overall optimism towards the UPC as a new playing field.