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EU Official Documents

Below you will find lists and links to the European Union treaties, laws and rules that will empower the European Patent Office (EPO) to grant Unitary Patents and will create the Unified Patent Court (UPC). Please do not hesitate to contact anyone on our Unitary Patent Team for help understanding any of these documents or their contents.

Unitary Patent Documents

EU Regulation 1257/12 of Dec. 17, 2012 governs the grant and post-grant management of European patents with unitary effect (Unitary Patents). The final version, published in the EU Official Journal on January 20, 2013 is here.

EU Regulation 1260/12 of Dec. 17, 2012 specified the translation requirements for Unitary Patents. The final version, published in the EU Official Journal on January 20, 2013 is here.

Both of these regulations will take effect on the same date as the Unified Patent Court (UPC) Agreement. The Select Committee approved draft rules on 9 December 2014. The draft rule on financial issues was postponed for later consideration. The consolidated draft of those rules is here.

One of the most critical aspects of these rules will be the fees for validation and maintaining a Unitary Patent.

At its meeting on 15 December 2015, the Select Committee adopted four sets of rules, including the Rules relating to Fees for Unitary Patent Protection. They include a renewal fee schedule, which is the EPO President’s “True TOP 4” proposal. It provides fee levels closely corresponding to the sum of the renewal fees which have to be paid for the four countries out of the twenty-five EU participating member states in which European patents are currently most often validated other than Italy. The previously agreed fees were not increased after Italy joined the UP scheme.

For further details on fees, see our Costs page here.

A link to the EPO’s Unitary Patent and Unified Patent Court page is here.

Unified Patent Court (UPC) Documents

Report of the 15th Preparatory Committee  meeting

15 April 2016

The Committee met in Luxembourg on 14 April 2016, it was a great opportunity for committee members to be able to view the UPC Court of Appeal building at Nouvel Hémicycle, 1, rue du Fort Thüngen.

A milestone was reached by the committee when the recruitment package was agreed. This now means the adverts for judicial appointments can be advertised in May. The exact date of the launch is to be agreed but for those interested it is expected the recruitment process will begin in early May.

The Committee also discussed a draft Code of Conduct for practitioners developed by EPLAW, EPLIT, and the epi. The draft Code of Conduct is expected to be agreed at the next meeting of the Committee at the end of May. A signing ceremony on the Protocol on Privileges and Immunities will take place at the end of June, this will be important for a number of Signatory States for their ratification process. The Chairman was pleased to hear that Bulgaria is in a position to ratify the UPCA by the end of April. This will bring the total number of ratifications to 10.

The Rules on Arbitration and the Rules of Operation of the Patent Mediation and Arbitration Centre of the Unified Patent Court were discussed. The organizational rules will be subject to some further amendments while the Rules on Arbitration were agreed by the Committee. The Rules on Arbitration will be published at a later point in time.

The next meeting will be held in Germany on 26 May

A copy of an 18th draft of the rules prior to consideration at the committee’s June 2015 meeting has been circulated unofficially.  At its 27 October 2015 meeting, the UPC Preparatory Committee adopted the 18th draft as the final Rules of Procedure. [see Chronology] The Rules are subject to future amendments setting the court fees and final approval by the UPC itself, when it is established.

The Unified Patent Court (UPC) Agreement, EU Document 16351/12 of Jan. 11, 2013, is a new treaty, to be adopted by a majority of EU member states.

The UPC Agreement was opened for signing on February 19, 2013. All EU states at that time except Spain and Poland have signed. Croatia has since joined the EU but has not yet signed onto the UP and UPC package. The UPC Agreement and the two Unitary Patent regulations will come into force approximately three months after the UPC Agreement is ratified by 13 EU states, including France, Germany and the United Kingdom.

See the European Council’s website here for information on the progress of ratifications as they are officially deposited. For more information, please see our FAQs 27-40.

The UPC Preparatory Committee announced on 1 October 2015 the signing of a Protocol allowing some parts of the UPC Agreement to be applied early, including the recruitment of judges, testing of IT systems and early registration of opt-out demands.

The announcement also indicated the target date for UPC opening is “at the start of 2017.”

A declaration (here) concerning the establishment of attached to the minutes of signing the UPC Agreement (EU Council document 6572/13) commits the signatories to cooperate in establishment of the UPC so it can begin operation on the effective date of the UPC Agreement. The Preparatory Committee contemplated by that declaration held its first meeting on March 26, 2013. In preparation for that meeting, Netherlands and Sweden circulated a “non-paper” to all delegations setting out a number of concrete proposals for handling the practical aspects of the preparatory work. That document is attached to a meeting announcement from the EU Council Presidency, Document No. 7265/13, here.

A link to the Unified Patent Court webpage of the Preparatory Committee is here.

On January 30, 2014, political agreement was reached on a proposal to include the UPC in the EU’s “Brussels 1” regulation governing jurisdiction of courts and recognition of judgments. This would be accomplished by an amendment (here), resulting in the “recast version of the Brussels 1 regulation.” It will place the jurisdiction and judgments of the UPC on substantially the same basis as those of national courts of member states, govern the relationships of UPC jurisdiction and judgments with those of courts of EU member states not participating in the UPC, and add jurisdictional provisions relating to defendants not domiciled in UPC participating states. The EU Council adopted the “recast version of the Brussels 1 regulation” on May 6, 2014. The amended regulation took effect on January 10, 2015 for court proceedings in all EU states commenced on or after that date.

Draft rules for the UPC have been in preparation by a drafting committee for several years. The 16th draft dated March 16, 2014 is here. It is in redline form, showing changes from the 15th draft. Comments that were submitted before the October 1, 2013 deadline were considered by an Expert Group on rules and the Preparatory Committees. This draft was accompanied by a 201 page digest here prepared by the Expert Group for their discussions, containing comments received on the 15th draft and explanations of the revisions.

The UPC Preparatory Committee issued the 17th Draft of the UPC Rules of Procedure on 31 October 2014. (Copy here). This draft was issued by the Legal Group of the official Preparatory Committee itself. Earlier drafts were produced by an advisory Experts Group. The 17th draft is in mark-up form, showing the amendments by the Expert Group as a result of the written consultation in red (16th draft) and amendments made by the Legal Group in blue. The Committee also published a table (here), comparing the 16th and 17th drafts, and including the explanatory notes to the changes.

A hearing on the draft Rules of Procedure was held at the European Law Academy (ERA) in Trier, Germany on 26 November 2014. Over 70 organizations and European judges attended.

A copy of an 18th draft of the rules prior to consideration at the committee’s June 2015 meeting has been circulated unofficially.  At its 27 October 2015 meeting, the UPC Preparatory Committee adopted the 18th draft as the final Rules of Procedure. [see Chronology] The Rules are subject to future amendments setting the court fees and final approval by the UPC itself, when it is established.

Draft Rules on the European Patent Litigation Certificate were published on 9 September 2015 by the UPC Preparatory Committee, together with an explanatory memorandum. The Certificate will permit patent attorneys who are not attorneys at law to appear before the Court if they have the required litigation training.

On February 25, 2016, the UPC Preparatory Committee approved publication of “Rules on Court fees and recoverable costs” with a proposed “scale of recoverable cost ceilings” and related Guidelines. These are final as far as the Preparatory Committee is concerned, “subject to legal scrubbing,” but—like all UPC rules—are subject to adoption by the UPC Administrative Committee when it is established.  The proposed fixed, base court fee would be €11,000 for a UPC infringement litigation, with additional value-based fees for cases which exceed a value of €500,000. The fixed fee for a revocation case will be €20,000, with no additional, value-added fee.

Although earlier UPC fee proposals had included an €80 fee to opt-out of UPC jurisdiction over a conventional EP, the final fee rules do not impose an opt-out fee.  An Explanatory Note says, inter alia, “There is no additional cost for the Case Management System to process opt-out requests if there is no fee. Requiring people to make payment generates costs for the court which would not be needed if there were no fee. So, removing the fee removes the cost; it also eliminates the problem of how to process payments….”

The Report of the Preparatory Committee’s February 24-25, 2016 meeting  also disclosed adoption of Rules Governing the Registry of the UPC, Rules of Procedures of the Advisory Committee and the Protocol on Privileges and Immunities, and agreement on the level of judicial salaries, but recruitment of judges was postponed.

Updated March 14, 2016.