What is the Unified Patent Court (UPC)?

The Unified Patent Court (UPC) is a common supranational court for patent litigation established by the Agreement on a Unified Patent Court (UPCA), signed on February 19, 2013. The court formally commenced operations on June 1, 2023.

Before the UPC existed, enforcing or challenging a European patent across multiple EU countries required separate litigation in each national court, often producing inconsistent outcomes and duplicating costs. The UPC eliminates that fragmentation for patents within its jurisdiction: a single judgment has effect across all participating states.

Participating member states

As of September 2024, 18 EU member states have ratified the UPCA and participate in the UPC system: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Slovenia, and Sweden. Spain, Poland, and Croatia did not sign the UPCA, and the United Kingdom does not participate following its departure from the EU. Additional states that have signed but not yet ratified may join the system by completing their ratification.

What the UPC covers

The UPC is a court for patent disputes and does not grant patents. The UPC has jurisdiction over three main categories of rights.

Unitary patents. The UPC has exclusive jurisdiction over European Patents with unitary effect (unitary patents) and supplementary protection certificates (SPCs) issued for products covered by such patents. A unitary patent is a European patent, granted by the EPO, that has unitary effect across all UPC participating member states and operates as a single indivisible right. Because the right is territorially indivisible, it cannot be selectively maintained or abandoned on a country-by-country basis.

Classic European Patents. The UPC also has jurisdiction over classic European Patents (those without unitary effect) in participating member states. This means a classic EP validated in, say, Germany, France, and the Netherlands can be litigated at the UPC rather than through three separate national actions.

Types of actions

The UPC can hear:

• actions for infringement and related defenses, including counterclaims for revocation
• standalone revocation actions
• actions for declarations of non-infringement
• requests for provisional and protective measures, injunctions, and other interim relief

A key consequence of the UPC's reach is that a single revocation action can challenge a patent's validity across all participating member states simultaneously. Practitioners commonly call this a "central attack." This two-edged feature means a single proceeding can either enforce or extinguish a patent across multiple countries, and it is the central strategic consideration for both patentees and third parties when assessing UPC exposure.

Court structure

The UPC has two tiers.

Court of First Instance. This tier includes:

• A Central Division, seated in Paris, with a section in Munich that handles mechanical engineering cases and a section in Milan that was added on 1 July 2024 to replace the originally planned London section.
• Local Divisions in individual participating member states. The Court of First Instance has 13 local divisions across participating member states.
• The Nordic-Baltic Regional Division, seated in Stockholm.

Each panel of the Court of First Instance typically consists of two legally qualified judges and one technically qualified judge with expertise in the relevant field of technology.

Court of Appeal. The Court of Appeal is located in Luxembourg. Each appellate panel consists of five judges.

Local and regional divisions primarily hear infringement actions, while the Central Division primarily handles standalone revocation actions.

Central Division proceedings are conducted in English, French, or German. Local divisions typically use the local language, though parties may agree to English or another official UPC language in many divisions.

The opt-out mechanism

The UPCA includes a transitional period during which proprietors of classic European Patents can remove those patents from UPC jurisdiction. This decision is among the most consequential portfolio management choices created by the new system.

During the transitional period, proprietors of classic European Patents may opt those patents out of UPC jurisdiction, placing them under the exclusive jurisdiction of national courts. An opted-out patent is litigated country by country, as was standard practice before June 2023.

Unitary patents cannot be opted out from UPC jurisdiction. The opt-out option is available only for classic European Patents.

Opt-out applications are filed through the UPC's online case management system and must be signed by all co-owners of the patent for all EPC member states, not only the registered proprietors. A patent already subject to pending UPC proceedings cannot be opted out.

If a proprietor later withdraws an opt-out (to return the patent to UPC jurisdiction for offensive enforcement), the patent cannot be opted out again. Withdrawal is a one-way door.

After the transitional period expires, all classic European Patents in participating member states will fall under the exclusive competence of the UPC, unless they were opted out during the transitional period. Patents successfully opted out remain under national court jurisdiction.

Practical notes for practitioners

• The opt-out decision is a two-sided strategic choice. Keeping a classic EP in UPC jurisdiction enables pan-European enforcement in one proceeding but also exposes the patent to a central attack that can extinguish it across all participating states in a single action. Opting out avoids that revocation risk but forfeits unified enforcement. Neither is universally preferable. Evaluate patent strength, the competitive landscape, and enforcement objectives before deciding.

• Withdrawal of opt-out is irreversible. If a proprietor opts out and later withdraws to bring UPC infringement proceedings, the patent cannot be re-opted out. Evaluate long-term strategic consequences before withdrawing.

• Co-owner coordination is essential. Because all co-owners must sign the opt-out application, fragmented ownership creates execution risk. Confirm all current owners across all EPC member states before initiating the process.

• The UPC's jurisdiction is geographic. Classic EPs validated only in non-participating states (for example, Spain) remain under national jurisdiction regardless of the proprietor's opt-out choices for the participating designations. Assess each national designation separately.

• A unitary patent is an all-or-nothing right. Because a unitary patent operates as a single indivisible right, it cannot be maintained selectively in a subset of participating states. Applicants who want geographic selectivity should consider classic EP national validation instead of requesting unitary effect at the EPO.

• The UPC does not change EPO prosecution. European patent applications are still filed and prosecuted before the EPO. The UPC affects what happens after grant, not the path to grant.