The first installment in this series on the Unified Patent Court (UPC) provided an overview of some of the key elements of the UPC. This second installment will examine the structure of the UPC, focusing on the framework of Courts to be established, and the composition of the panels of Judges that will preside over the various Courts.

The goal of the UPC is to unify the enforcement of patent rights by giving pan-European effect to the decision of a designated UPC Court of any contracting member state. Once established, the UPC will include the following components:

  • Court of First Instance: comprising a Central Division and Local/Regional Divisions;
  • Court of Appeal: which can refer questions to the Court of Justice of the European Union (CJEU);
  • Registry: to primarily administer the caseload of the UPC;
  • Administrative Committee: comprising one member from each contracting member state;
  • Budget Committee: also comprising one member from each contracting member state; and
  • Advisory Committee: having five to seven members, nominated by the contracting member states.

The Central Division of the Court of First Instance will be seated in Paris, with sections in London (with particular emphasis on chemical subject matter) and Munich (with particular emphasis on engineering). The Central Division can hear revocation actions, declarations of non-infringement, and infringement actions, particularly where the defendant is domiciled outside the contracting states. In general, the Central Division will not hear infringement actions, which will be dealt with by the Local/Regional Divisions.

Regional (two or more contracting states) and Local Divisions can decide on infringement across all technical fields, with jurisdiction being dictated by the contracting member state in which the infringement occurred or in which the defendant is domiciled or has a place of business. Regional/Local Divisions will also decide on issues involving provisional protection between publication and grant, and injunctions. If in an infringement action is taken before a Regional/Local Division, and there is a counterclaim of invalidity of the patent, the Regional/Local Division may proceed with both actions; refer the counterclaim to the Central Division; or refer the entire proceedings to the Central Division, subject to the agreement of all parties to the proceedings.

The Court of Appeal is to be seated in Luxembourg, and can refer questions of the law to the CJEU, but there is no right of appeal from a decision of the Court of Appeal.

Training programs for Judges have been provided (in Budapest) since 13 March 2014. The Judges will either be legally qualified, requiring qualifications for a judicial appointment in a contracting member state along with experience in national patent litigation; or technically qualified, again requiring experience in national patent litigation along with a university degree and proven experience in a field of technology.

The panels of the Central Division will be composed of two legally qualified Judges from different contracting states (which may be reduced to one if the parties agree) and one technically qualified Judge allocated from a pool of Judges and having qualifications and experience in the relevant technical field.

Local and Regional Divisions will be composed of three legally qualified Judges (may be reduced to one if the parties agree) – one/two Judges (depending on the number of patent cases in that state per annum) from the contracting member state of the Court, with remaining Judges being allocated from the pool of UPC Judges, and at least one of the Judges being from a contracting state other that the contracting state of the Court. These panels may be supplemented with one technically qualified Judge from the pool of Judges on request of either of the parties or the Court itself.

The panel of Judges in the Court of Appeal will be composed of three legally qualified Judges from different contracting states, and two technically qualified Judges with qualifications and experience in the relevant technical field. The Judges of the Court of Appeal are selected by the President of the Court of Appeal from the pool of Judges.

It is hoped that this proposed structure, in particular the composition of the panel of Judges, will ensure that the participating Courts of the UPC apply patent law uniformly, competently and efficiently, and thus benefit the users of the system.