The UPC – one year on

The Unified Patent Court (UPC) has been in operation for a year and during this period Herbert Smith Freehills has been busy helping clients across the full spectrum of UPC issues, from advice on opt-in vs opt-out strategy, through to full-scale UPC proceedings.

We are delighted to mark this anniversary (and the imminent opening of the Milan seat of the UPC's Central Division on 26 June 2024) with our briefing The UPC landscape one year on (available on request here).  See also our other UPC briefings published across the first year of the UPC and also available here.

In our "one year on" briefing, we review the developments in court practice and procedure that have evolved over the first 12 months and the trends and strategies that have emerged, both offensive and defensive, and consider likely future developments in the UPC's next year.

Romania has granted the UPC an anniversary present by finally fully ratifying the UPC Agreement, so that it will become the 18^th EU Member State to participate in the new UPC and unitary patent system joining the other 17 participating states, from 1 September 2024. It was  unfortunate that Ireland postponed its referendum but we would expect that this would now come sometime in 2025, so another additional member may be on the horizon.

The UPC has also issued a new set of statistics from 1 June 2023 to 31 May 2024, to coincide with its first year of operation. These show that there have been 373 applications, including:

• 134 Infringement actions lodged in local divisions
• 165 counterclaims for revocation (from 63 individual infringement actions)
• 32 applications for provisional measures (including PIs and saisie inter alia)
• 39 revocation actions direct to the central division

The statistics also show a move from German to English as the predominant language of filing over the course of the year, with 50% of proceedings in the first year being in English and 44% in German (and 2% French, 2% Italian, 2% Dutch) .

Looking forward into the second year of the UPC;

• We await the outcome of the first main action proceedings this year. This will be significant procedurally as well as in terms of the court's approach to the applicable law.
• The initial approach of the UPC has been promising on interim applications, but more appeal decisions will help shape a consistent approach in many areas.  
• We would hope to see more signatory states, like Ireland, will follow Romania in fully ratifying the UPC Agreement and so joining what is looking to be a successful new court system.
• Currently, the UPC is being used as an additional forum in many, already on-going, international patent disputes. We predict that the success of the first year will lead to the UPC much more commonly becoming the initial forum for new disputes.

For more information on the UPC and unitary patent please see our UPC Hub.