What is the relationship between the UPC and the Court of Justice of the European Union (CJEU)?

This is a controversial subject, and was the subject of much debate during the negotiation of the UPCA. In the end a compromise position was reached. The UPC must “fully respect and apply” EU law “in cooperation with the CJEU as is the case for any national court in an EU Member State. The UPC should rely on and respect the primacy of the case-law of the CJEU by requesting preliminary rulings on matters of EU law. However, the basic law on validity and infringement is not derived from EU legislation but other sources, in particular the UPC Agreement itselfand the European Patent Convention. The UPC will also have regard to other international agreements and national laws where applicable.

The effect of this on questions of validity (eg novelty and inventive step) is that the Court should follow the EPC and interpret that in a manner uniform across all participating Member States. The effect on infringement is more complex, though the end result is again that the UPC should apply a uniform interpretation. The legal basis is that acts of infringement are to be judged, in a manner uniform across all participating Member States, according to the national law of the EU country where the applicant for the patent was resident or had its principal place of business, or otherwise had any place of business, at the date of application. For disputes involving entirely non-EU based applicants with no other jurisdictional basis, as a fall-back position, the Court will apply German law. However, all participating states will have incorporated the UPC Agreement into its national law, so the applicable law should be the same regardless of which country’s law officially applies, not least as the nature of infringing acts is defined in the UPC Agreement itself.

In practice it is expected that the UPC will build up its own jurisprudence on validity and infringement, which will be uniformly applied across the Local, Regional and Central divisions and in the Court of Appeal.

References to the CJEU will be made where issues of EU law are involved, such as the UP Regulation, the “Brussels” Regulation relating to service, and other EU regulations and law on matters such as supplementary protection certificates, biotechnology inventions and competition law.

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