June 1 marked the first anniversary of the launch of the Unified Patent Court (UPC). And although it got off to a start amid considerable uncertainty regarding its acceptance and operation, it appears to be overcoming some initial problems and gradually finding its footing.
Its decisions have an impact on the 17 member states participating in this agreement, which will soon number 18 with the addition of Romania. In its first year, the TUP has initiated more than 370 cases, including one as significant as the one involving the patent for the video referee system used by UEFA in soccer matches.
When the TUP was launched, there were some doubts about how widely it would be accepted. Currently, all of its divisions are already up and running, although it is true that some have received very few cases—or even none at all—so far.
One of the reasons why there isn't much activity in this area is that, although plaintiffs are aware of the TUP's ability to centrally revoke a patent and enforce it in the event of infringement, they sometimes feel more secure litigating in national courts.
Even so, it is likely that the system will gradually become established, with well-thought-out decisions that help build trust among potential users, and that the technical issues identified initially will be resolved. It would also be advisable to expand the range of courses available to help users better understand the tribunal and its procedures.
So far, the technology sector with the most cases is the one related to electronic and electrical technologies, particularly in infringement lawsuits. In contrast, companies in the pharmaceutical/chemical/biotech sector are not as active as expected; the reason may be that they prefer to wait until the system is more established.
Another significant point is that the Munich-based local division accounts for one-third of all cases filed. This may be due to the fact that German courts have extensive and proven experience in this type of litigation, combined with the fact that German is the language of 45% of the proceedings initiated to date.
The truth is that this concentration of cases in the Munich division creates a certain imbalance in the system, since it was designed to be an international and decentralized court. Perhaps the opening of a branch of the Central Division in Milan, scheduled for the end of this month, will help even things out.
An important factor to consider before filing a lawsuit is the financial aspect: this is because both court fees and the costs of professional representatives and attorneys can be quite substantial.
Although our country is not a party to the TUP agreement, there are Spanish companies involved in various proceedings, both as defendants and as plaintiffs. In all cases, TUP decisions are valid only for participating countries and therefore cannot be enforced in Spain. For them to be enforceable in Spain, legal action would have to be brought before Spanish courts.
Therefore, the Unified Patent Court needs to establish itself so that potential users of the system can begin to place greater trust in it. The goal is for it to eventually become a true benchmark in Europe when it comes to taking legal action to protect the rights of patent holders.
Pedro Saturio, European Patent Attorney. Deputy Director of the Patent Division