The new Unified Patent Court will have a two tier structure, namely a Court of First Instance and a Court of Appeal. Where a question of European Union law arises, a third tier can potentially arise, in that the court will be able to refer questions of EU law to the Court of Justice of the European Union for determination, just as is currently the case with the national courts of EU member states.
The Court of First Instance will be made up of lots of divisions: local divisions, regional divisions and a central division. Each country participating in the UPC is entitled to have one (or more) local divisions, or together with other participating countries to set up a regional division. As things currently stand, there will be one regional division, covering Sweden, Lithuania, Latvia and Estonia. All the other participating countries, with the exception of Monaco and Luxembourg, intend to host one or more local divisions.
Judges will sit in multinational panels of three, with a fourth, technical judge being added in situations where a local or regional division hears a counterclaim challenging the validity of the patent in suit, as well as the initial claim for patent infringement.
In contrast to the Court of First Instance with its many divisions, the Court of Appeal will be a single court in a single location, namely Luxembourg. Appeals will be heard by a multinational panel of 5 judges. Having a single appeal court is significant as, over time, it is expected that this should lead to harmonisation of questions of law and of procedural issues across the many first instance divisions.
The division of cases between the various divisions of the Court of First Instance is complicated but, generally speaking, infringement cases can be brought in a local or regional division where either the defendant is domiciled or where the allegedly infringing acts have taken place. This will inevitably lead to forum shopping, particularly where infringing products are available throughout the European Union.
Actions for revocation of patents and for declarations of non-infringement must be brought in the Central Division. The Central Division has its seat in Paris and a branch in Munich. There was going to be another branch in London but, now that the UK is no longer participating in the UPC, we are waiting to see if the participating UPC countries will agree on another location. If so, Milan is looking like the most likely choice.
The procedural rules envisage a largely written procedure, with a case reaching trial in around one year from the commencement of proceedings. However, this will probably only be realistic for relatively simple cases. Where additional procedural steps are required to prepare a case for trial, such as the discovery of documents, conducting experiments or the cross-examination of expert witnesses, the case may take significantly longer to come to trial.
