The unified patent court

Abstract On 1 June 2023, the Unified Patent Court (UPC) for the settlement of disputes relating to European patents and European patents with unitary effect opened its doors as a common court of those European Union (EU) Member States that, in 2012, had joined in an enhanced cooperation in the area of unitary patent protection, and then, in 2013, entered into an ‘Agreement on a Unified Patent Court’ (UPCA) that complements their cooperation and expands it to non-unitary European patents. Although the Court’s jurisdiction is strictly limited to the two main forms of actions that may be brought in the special field of patent protection—infringement and revocation—its establishment deserves an analytical evaluation from the perspective of general European Union law because it is the first time that Member States create a common court aside of the EU’s judicial system not only for the settlement of disputes arising under their own—national or internationally uniform—legal regimes, but also for a legal regime of Union law, the unitary protection of patents. In this regard, it is not so much the sheer size of the new court that attracts attention or the economic importance of the subject matter that comes under its exclusive jurisdiction, but the many fundamental issues and controversies that accompanied its creation and that are still extensively discussed in literature. Leaving aside doctrinal problems of a proper qualification of the UPC as a common court of Member States, the main concerns relate to (i) the need for and the risks of the (over-)specialization of the UPC as a technical expert court; (ii) the legitimacy and democratic deficits of the UPC as a jurisdiction the rules and operation of which are essentially determined through self-regulation by the patent law community; (iii) the difficulties of properly qualifying the nature of the rules of substantive law of both the EU’s Regulation on unitary patent protection and of the UPCA, the ambivalence of which seemingly allowing much room for interpretation and for curtailing the reach and primacy of Union law; (iv) the related problems of adequately defining the relationship between the UPC and the Court of Justice of the EU as regards safeguarding the autonomous and uniform interpretation of Union law; and (v), more generally, the structural imbalances within the EU’s judicial system that may result from the establishment of common courts of Member States the jurisdiction of which covers the very substance of a legal regime of the Union.