Having recently shared the '5 things you need to know about the UPC', in this article we will provide an update on recent developments in relation to the Unified Patent Court (UPC) and will also zoom in on the role the Benelux plays in this upcoming system including language requirements.
Extension Sunrise Period
The most recent UPC news is that the start of the Sunrise Period has been postponed for two months, meaning that it will start on 1 March 2023 followed by the entry into force of the UPC Agreement on 1 June 2023. The background of the extension is, as can be read on the UPC website, that more time is envisaged to be needed for future users to prepare for the strong authentication which will be required to access the Case Management System (CMS) and to sign documents.
Structure and composition of the UPC – judicial appointments
The UPC consists of a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance comprises (currently) two central divisions, one regional division and 13 local divisions. Both The Hague and Brussels host a local division, whilst the Court of Appeal and the Registry are located in Luxembourg. The central division's seats will be located, as it currently stands, in Paris and Munich.
The UPC sits in a multinational composition, chaired by a legally qualified judge. Recently, the initial list of appointed judges for the UPC was published, with a strong Benelux representation. For the Netherlands, two judges of the specialised IP chamber of the Court of Appeal of The Hague have been appointed to the Court of Appeal, with one of them also taking up a position in the Presidium of the UPC and as Presiding Judge of the second panel of the Court of Appeal. Furthermore, two specialised IP judges of the District Court of The Hague have been appointed as judges in The Hague's local division; and a judge of the IP chamber of the Antwerp Court of Appeal has been appointed in Brussels' local division. As for the technically qualified judges, the Benelux is also strongly represented, with two appointments in the field of biotech, one in the field of chemistry and pharmaceuticals, one in the field of electricity and three in the field of mechanical engineering.
UPC proceedings in the Benelux - language
The Benelux already plays an important role in patent litigation, with in particular the Netherlands being a popular patent jurisdiction with a long-standing practice of cross-border litigation. This important role will only be strengthened with the impending UPC, with local divisions in both The Hague and Brussels, and Luxembourg hosting both the Court of Appeal and the Registry. Moreover, unlike the European Patent Convention, the UPC Agreement is subject to the interpretation of EU law by the Court of Justice of the European Union, also based in Luxembourg.
As a main rule, the language of proceedings at the local and regional divisions will be (one of) the official language(s) of the hosting state. However, the hosting state can also designate one or more of the official language of the EPO (English, French and German) as an alternative. In The Hague's local division, either Dutch or English can be chosen as the language of the proceedings, whilst at the local division in Brussels, a choice can be made between Dutch, English, French and German. In principle the claimant may choose, but there are exceptions. Alternatively, parties may also agree on the language in which the patent concerned was granted (subject to the approval of the competent panel, in the absence of which the parties may request a referral to the central division, where all proceedings will take place in that language). The language before the Court of Appeal will in general be the same as the language used in first instance. However, parties may agree on the language in which the patent concerned was granted and in exceptional cases, the Court of Appeal may decide on another official language of a contracting state subject to the parties' agreement.
NautaDutilh's Benelux team
NautaDutilh's UPC task force, with a strong presence in all three Benelux countries, has extensive experience in litigating before the judges that have been appointed in the two local divisions and it has an unrivalled track record in proceedings before the Court of Justice of the European Union. Moreover, the team is fluent in English, Dutch, French and German (and Luxembourgish), providing the firm's clients with a great advantage when litigating before the UPC. In short, NautaDutilh, that has served clients since 1724, is more than ready to represent its clients at the upcoming UPC.
For more information on the UPC, please contact:
The Netherlands: Jeroen Boelens
Belgium: Tanguy de Haan & Florence Verhoestraete
Luxembourg: Vincent Wellens