Unified Patent Court (UPC)

The Unified Patent Court (or UPC) is intended to be the first EU-wide court for civil disputes. If it comes into being, it will fundamentally change how European patents are litigated in Europe. Instead of enforcement in national courts for national relief, patentees would be able to opt for Europe wide injunctions in one division of the UPC; and parties could seek revocation of all national parts of a European patent in a single action. This would have a significant impact on any business which is involved in patent litigation or licensing in Europe.

Following the UK’s Brexit vote in May 2016, there are several question marks over the UPC and the European Patent with Unitary Effect (the Unitary Patent). For the UPC to start work, the UPC Agreement must be ratified by each of the UK, Germany and France, and it remains unclear whether the UK government will be willing to ratify an EU instrument. Assuming that the UPC does begin work, there has been a question as to whether the UK – if it wished to participate – could legally do so once it has left the EU.

If the UPC does not open, the Unitary Patent will not come into effect either.

Simmons & Simmons has one of the leading, most highly experienced and closely integrated teams of IP lawyers across Europe. Kevin Mooney, a long standing Partner at the firm, has been part of an international team of lawyers working towards the creation of a new European patent court for many years. He served as the Chairman of the Committee that was tasked with drafting the Rules and Procedure of the UPC and is now the only UK lawyer who is a member of the Expert Group advising on the implementation of the UPC project. Kevin Mooney, with Rowan Freeland, was also involved in obtaining a formal legal Opinion on whether the UK can legally remain part of the UPC after Brexit.

Simmons & Simmons is therefore uniquely placed to advise clients on the UPC and appropriate steps to prepare for its possible implementation, as well as advising on European litigation strategy.

Our article ‘Brexit: the implications for intellectual property’ can be found here.