The Unified Patent Court (UPC), long-awaited, opened in June 2023 and is being watched with interest by the patent community. Less than a year in, there is a limited track record against which patent holders and their lawyers can make decisions on whether or not to opt-in their patents to the court’s auspices.
There is guidance everywhere about the opt-in or opt-out process, which industries or business-sizes might favour the court in its infancy, and which might hold back. Some predictions have held true, others much less so – some of the first cases issued in the UPC were in relation to patents held by major big-pharma/ life sciences players, for example.
In the absence of jurisprudence, those holding back will need to base their decisions on whether or not to utilise the UPC on other factors.
On the positive side we have seen the court respond quickly on injunctive relief, for example awarding ex parte relief within a day (myStromer), followed up swiftly by the first penalty award against the defendant for breaches of the preliminary injunction; and the Munich division granting a preliminary injunction having taken the view that the patent was more likely than not valid. The court seems to be patent-holder friendly in this respect, and certainly responsive.
There appear to have been some issues with the administrative aspects of the court though. The stance taken by some divisions of the UPC to third-party access to court documents may be factored in by some when deciding whether their patents should come under the court’s auspices. Whilst the court’s rules allow public access to judgments and orders, reasoned requests are required to see pleadings and evidence. The Munich division seems to be setting a high bar to what it will consider a sufficient and legitimate reason to require access, whereas the Nordic Baltic division has been more relaxed. Those used to the transparency of the EPO, or from national jurisdictions with easier access for non-parties, may see the (currently) unpredictable approach as a stumbling block, especially when there is – justifiably- so much interest in learning and understanding the court’s approach.