As a general rule: The UPC will have exclusive competence in respect of civil litigation on matters relating to European patents and Unitary Patents. The UPC will consequently also have exclusive competence on Supplementary Protection Certificates issued for a product covered by a European patent and a Unitary Patent.
More specifically: The Court will be exclusively competent for actual or threatened infringements and related defences, and actions for declaration of non-infringement. The UPC will also be competent for actions for provisional and protective measures, injunctions, actions for revocation and counterclaims for revocation.
However, during at least 7 years after the entry into force of the UPC Agreement, national courts will share jurisdiction with the UPC over actions for infringement and revocation of the national part of a European patent. These 7 years correspond to the transitional period.
What about the Court of Justice of the European Union?
The UPC will have the same obligation as any national court to request preliminary rulings from the Court of Justice of the European Union.
In fact, the UPC is a court common to EU Contracting Member States and as such, it must follow, apply and ensure the uniform interpretation of European Union law.
However, national courts will remain competent for actions that do not come within the exclusive competence of the UPC. The UPC will thus be incompetent with regard to national patents or supplementary protection certificates granted for a national patent.
What will be its relationship with the EPO?
The UPC will have exclusive competence to annul or alter the decisions of the EPO (Article 32 UPC Agreement) if the EPO misuses its power or infringes:
- Regulation (EU) N° 1257/2012;
- Regulation (EU) N°1260/2012;
- Any of the implementing rule of the EPO “for carrying out the administrative tasks referred to in article 9(1) of Regulation (EU) N°1257/2012;
- An essential procedural requirement.
Nonetheless, oppositions at the EPO will still be possible. The parties however must first inform the UPC of any pending revocation, limitation or opposition proceedings before the EPO. The Court may then:
- stay its proceedings when a rapid decision may be expected from the EPO.
- request that opposition proceedings before the European Patent Office be accelerated in accordance with the proceedings of the European Patent Office, (Rule 298 of the Rules of Procedure of the UPC)