It is now almost 20 months since the Unified Patent Court (UPC) opened, introducing the new Unitary Patent (UP). There are 18 participating states; Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Slovenia and Sweden. The issue of Ireland joining will depend on a referendum, which has yet to take place.
The UPC aims to provide uniform patent protection across the participating EU member states, with decisions issued within 12 months. Over 600,000 European patents have been opted out of the jurisdiction of the UPC. However, activity has been steadily increasing in the UPC, with over 200 infringement actions and 50 revocation actions pending.
English is the most popular language for proceedings, followed by German and French. The German Local Divisions are the most popular for infringement actions, while the Paris seat of the Central Division handles the majority of revocation actions.
So far, the UPC Courts are applying Art. 69 EPC and its Protocol, showing that patent claims should be interpreted in light of the description and drawings, aiming for a balance between adequate protection for the patentee and legal certainty for third parties. There are however some differences about the extent to which the prosecution history is to be used, with Local Division (LD) courts in Dusseldorf and Munich taking different approaches, the former taking the view that it is not admissible.
Regarding the test for Novelty, the UPC is taking much the same approach as the EPO’s one, that all features must be unambiguously disclosed in a single prior art document. However, the approaches to considering Inventive Step mostly have not followed the EPO’s “problem-solution” test. They are using in most cases a multi-factor approach. These include whether the skilled person would have been motivated to consider the claimed solution, would the skilled person have anticipated problems in carrying out the next step, and that a technical effect or advantage over the prior art may be an indication of inventive step.