Laura Orlando and Rachel Montagnon were in conversation with Adam Houldsworth of IAM recently, leading to their comments being published in the IAM article Your guide to the UPC on day one (pdf here). The article looks at how the UPC and unitary patent landscape will look at the start of the new system, including the likely range of states involved, with the Czech Republic and Hungary now looking less likely to join as well as Ireland needing a referendum (although one has been promised by the Irish Government in 2023 or 2024). On the range of states participating on day 1, Montagnon comments: “There is a misconception that the scope of a UP granted on day one will continue to expand as new member states join the UPC system, but that is not true, In fact, the territory in which a UP applies will be fixed as encompassing only the UPC participating states at the date the unitary status is registered by the EPO. So later UPs may cover more territory than those registered in the early days of the new court”.
Laura Orlando comments that the late joining of members states may not have much overall impact on UPC strategies given the presence of major economies like Germany, Italy, France and the Netherlands: "There will be an incremental approach to membership, but I do not think this will have a dramatic impact on the functioning of the UPC system. From a pragmatic point of view, in existing European litigation there are particular, very key countries which are pieces of the litigation jigsaw and which can influence the approach taken by courts of the other countries and there are some territories where a decision is less crucial to overall strategy.”
Asked about jurisdictional issues Orlando was quoted as saying: “There will be a lot of jurisdictional issues on day one, and a lot of issues of interpretation to be resolved. These will not be limited to interpretation of the rules themselves, but also of the interplay between national actions and the UPC system. This is likely to produce questions that have to be referred to the CJEU. These questions will be prominent in the first two years or more of the new court.”
Read the full IAM article as a pdf here or via LinkedIn here.
For more on the UPC and unitary patent see our dedicated UPC & UP Hub.
Laura Orlando
Italy Managing Partner, Joint Global Head of Intellectual Property, EMEA Co-Head of Life Sciences, Milan
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Laura Orlando
Italy Managing Partner, Joint Global Head of Intellectual Property, EMEA Co-Head of Life Sciences, Milan
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