the UPC will have jurisdiction over certain European patents (see box The unitary patent and the UPC: a recap ).

THE UNITARY PATENT CENTRAL ENFORCEMENT OF PATENTS IN EUROPE In the second of a two-part series, Susie Middlemiss, Adam Baldwin and Laura Balfour of Slaughter and May examine the structure and procedures of the new unified patent court. The first article in this two-part series set out the background to, and the features of, the unitary patent which, when fully in force, will potentially give patent protection across most EU member states (see feature article The unitary patent: a new patent and court system for Europe, www.practicallaw.com/8-544-0047). This article focuses on the structure and procedures of the new Unified Patent Court (UPC) system that will be available for enforcing both the new unitary patents and traditional European patents. It also investigates the different options available for enforcing and attacking patents in the UPC. NEW LITIGATION SYSTEM In order to create a unified patent system, unitary patents will be governed and enforced on a central basis in the UPC. In addition, the UPC will have jurisdiction over certain European patents (see box The unitary patent and the UPC: a recap ). The UPC has been established under an international agreement (the UPC Agreement). To date, the UPC Agreement has been signed by 25 member states (the contracting states). The new UPC system, which will govern validity and infringement proceedings, among other actions, will apply both to unitary patents and to European patents (including existing European patents). However, for a transitional period of seven to 14 years, patent owners can opt out of the centralised UPC system so that the infringement and validity of European patents may still be brought before the national courts. The choice of venue for proceedings will depend on whether infringement proceedings and/or validity are in issue, where the defendant is based, where the infringement happens and, to some extent, on which party sues first (see Where to bring proceedings? below). STRUCTURE OF THE UPC The UPC will be made up of a court of first instance (comprising the Central Division made up of three separate courts and the local and regional divisions based in various contracting states) and a Court of Appeal. In general, the Central Division will hear actions for revocation or declarations of non-infringement in the absence of an infringement action. A claimant may have a choice of local or regional divisions in which to bring an infringement claim (see Jurisdiction below). Invalidity claims (with or without infringement issues) may be transferred to the Central Division and non-eu defendants may be sued for infringement there. 1

The unitary patent and the UPC: a recap The current patent system in Europe comprises: National patents that have effect only in one territory. European patents that have a central application procedure (and some opportunity for central attack by way of post-grant opposition procedures) through the European Patent Office (EPO), but which, once granted, become effectively bundles of national patents. Currently, both national and European patents are enforced through infringement proceedings in individual national courts. The unitary patent is intended to introduce a truly pan-european patent right, which will be centrally applied for (in the EPO) and, on grant, will become a single patent with unitary effect in multiple jurisdictions through the EU. A key objective of the scheme is that the patent can then be enforced centrally through infringement proceedings in one court of a new Unified Patent Court (UPC) system that can provide remedies that take effect in multiple EU member states. Similarly, one attack on validity can lead to the whole of the unitary patent being revoked with effect in all applicable member states. Following a transitional period (of up to 14 years), European patents will also be enforced and challenged through the UPC and national litigation will apply only to local national patents. Courts The Central Division will be divided into a main branch in Paris and two sub-branches in London and Munich. Each has been allocated responsibility to deal with different technical subject matter (cases being allocated by reference to the subject matter of the patent in suit), divided according to the International Patent Classification categories (see box Structure and composition of the UPC ). Regional divisions are also available to groups of contracting states, either in addition to a local division or as an alternative (for example, where there are insufficient patent cases to make a local division economical). Having a regional division may be more attractive to contracting states than, in the absence of a local division, all local patent cases being sent to the Central Division in either London, Munich or Paris. The Court of Appeal, which will be located in Luxembourg, will hear appeals based on both questions of law and of fact, and will seek to harmonise UPC case law, as there will be no further appeal. The European Court of Justice (ECJ), therefore, will not have an appellate function in the UPC system (see The role of the ECJ below). Judges The UPC system features legally qualified and technically qualified judges. The addition of technically qualified judges is an important step for patent litigation across Europe, responding to concerns that specialist judges are needed properly to adjudicate on complex technologies. The UPC system requires technical judges to have a university degree, proven experience in a field of technology and proven knowledge of the civil laws and procedures relevant to patent litigation. The allocation and nationality of judges in the relevant divisions of the UPC is dependent on the location of the division and case at hand (see box Structure and composition of the UPC ). A pool of qualified judges from various contracting states will be also be established, who will be able to sit in the various different divisions of the first instance courts, as required. Technically qualified judges from the pool may also be required to sit in the Court of Appeal. Court of Appeal. The Court of Appeal will use a panel of five judges, of whom three will be legally qualified and are nationals of different contracting states, and two will be technically qualified. Each contracting state is entitled to host one local division, with additional local divisions being available where caseloads are higher, up to a maximum of four local divisions per contracting state. The thresholds allow for one local division where the caseload for the last three years is up to 100 cases per year, two divisions for up to 200 cases, three divisions for up to 300 cases and four divisions for up to, and in excess of, 400 cases. While it is not yet clear how many local divisions each contracting state is likely to adopt, there is an indication that Germany will maximise its quota of four, with the UK and France each hosting only one local division. However, there are suggestions that Scotland is also seeking a local division. So far, there have been discussions regarding the establishment of regional divisions to include: A Nordic-Baltic regional division comprising Denmark, Sweden, Finland and the Baltic states with the court established in Malmo, Sweden and the language of the proceedings being English. A regional division including Bulgaria, Romania, Greece, Cyprus and Slovenia. Some countries (for example, Malta and Luxembourg) may choose not to host a local division nor form part of a regional division, in which case all proceedings will be before the Central Division. Central Division. Proceedings in the Central Division will be heard by two legally qualified judges who are nationals of different contracting states, and one technically qualified judge. Regional divisions. The panel of each regional division will be made up of three legally qualified judges (with the scope for an additional technically qualified judge). Regional divisions will have two judges from the regional list, comprising nationals of the contracting states concerned, and one judge from the pool, who will not be a national of the relevant states. Local divisions. Local divisions will also be made up of three legally qualified judges (with the scope for an additional technically 2 PLC Magazine / December 2013 / practicallaw.com

Structure and composition of the UPC Court of Appeal Luxembourg Central Division Comprising three courts with cases allocated by technical content of the patents: Local divisions Up to four local divisions per country depending on case load: Regional divisions Established by two or more contracting states. Current possibilities include: London Chemistry Human necessities Metallurgy Munich Mechanical engineering Lighting Heating Weapons Blasting Paris All other areas Fewer than 50 patent cases per year More than 50 patent cases per year Nordic, Baltic ( ) ( ) ( ) Romania, Greece, Cyprus, Bulgaria and Slovenia Key Legally qualified judge pool/other contracting state Technically qualified judge Optional judge ( ) Legally qualified judge local/regional contracting state qualified judge). Each local division will have one or two judges of the local nationality. This is likely to result in national procedure and traditions having a stronger influence than in other divisions. The nationality of the judges is related to the number of patent cases heard in the respective division per year over three successive years. If: Fewer than 50 cases are heard per year on average, only one judge will be a national of the contracting state and the two other judges will be drawn from the pool, who will not be nationals of the contracting state. More than 50 cases are heard per year on average, two judges will be nationals of the contracting state and one will be drawn from the pool. In addition, if a counterclaim for revocation has been raised, or alternatively at the request of one of the parties or the panel, one additional technically qualified judge may also be appointed. Judicial training The success of the UPC and individual divisions within it is likely to be dependent in large part on the quality of the judges. Concerns have been raised about a deficit of experienced patent judges across the EU. On the basis that only a few of the member states traditionally have a strong background in patent litigation, there are concerns that some divisions may lack the expertise required. However, the UPC provides for a permanent training framework for judges, with a training centre based in Budapest. For legally qualified judges, training is likely to consist of advanced courses in patent law and patent litigation, and internships at established and experienced national patent courts. For technically qualified judges, there is likely to be training on the basic concepts of patent law, with particular focus on patent validity and civil procedure. All judges will receive training on the UPC Agreement and the rules of procedure of the UPC (the rules of procedure), along with any required language training. HOW WILL THE UPC WORK? The details of what jurisdiction the UPC system will have, where proceedings can be brought and the details of procedure will be important to the operation of the system. Crucially, some details remain unsettled as the rules of procedure have not yet been finalised. Jurisdiction The UPC will apply to both: Unitary patents. Existing and future European patents (subject to opt-outs under the transitional arrangements). The UPC will not have jurisdiction in relation to: practicallaw.com / December 2013 / PLC Magazine 3

Venue choice for patentee Action for infringement Does the defendant have an EU presence? Where is/are the infringing act(s)? NO YES Technology determines which court Where is the defendant s residence? Where is the defendant s principal place of business? London Munich Central Division Paris Relevant local/regional division Defendant counterclaims for revocation Local/regional division transfers both infringement and validity claims to Central Division Bifurcation Local/regional division hears both infringement and validity claims Local/regional division transfers validity claims to Central Division Infringement action Stayed pending validity Local/regional division hears infringement National patents. European patents to the extent that they designate a non-contracting state (for example, Spain, Poland or non-eu EPC countries (such as Switzerland)). The national courts of those non-contracting states will retain jurisdiction. There will be a transitional period during which infringement or revocation proceedings in respect of a traditional European patent may still be brought before national courts. These transitional measures will reduce, albeit temporarily, the exclusive nature of jurisdiction referred to in the UPC Agreement, so that the exclusive jurisdiction of the UPC could take between seven to 14 years to come into full effect (see feature article The unitary patent: a new patent and court system for Europe, www.practicallaw.com/8-544-0047). Where to bring proceedings The UPC Agreement and the rules of procedure will prescribe where proceedings can be brought within the various divisions of the UPC (see boxes Venue choice for patentee and Venue choice for potential defendant ). There is scope for parties to agree which division (local, regional or Central) should hear an action. In the absence of such an agreement, the following rules apply: No existing proceedings. Where there are no existing infringement proceedings in the local/regional division, actions for revocation or declarations of non-infringement must be brought in the Central Division. The 4 PLC Magazine / December 2013 / practicallaw.com

Venue choice for potential defendant Action for revocation Action for declaration of non-infringement Has an infringement action been brought before a local/regional division? YES NO Local/regional division hearing infringement also hears declaration/revocation action Action for revocation Action for declaration of non-infringement Was the infringement action started within three months of declaration of non-infringement? NO YES Technology determines which court London Munich Paris Local/regional division hears infringement Declaration of non-infringement stayed Central Division choice of Paris, London or Munich will depend on the technology of the patent in suit. If an infringement action is brought in the three months following the initiation of a declaration of non-infringement, the declaration of non-infringement will be stayed in the Central Division, pending the infringement claim (see box Venue choice for potential defendant ). Infringement proceedings can be brought in the place where either: The infringement occurs. The defendant is resident or has its principal place of business. If the defendant does not have a presence in any of the contracting states, the claimant can choose to bring proceedings either in the relevant branch of the Central Division based on the technology of the patent in question, or the place where the infringement occurred (see box Venue choice for patentee ). Existing proceedings. Where infringement proceedings have already been commenced, a counterclaim for revocation must be brought in the same forum as the infringement proceedings. At this point, the hearing of the counterclaim for revocation (assuming the infringement proceedings were started in a local or regional division) could take place in various locations, depending on the actions of the court and the parties: The infringement and revocation actions may be heard together in the local/ regional division. The counterclaim for revocation may be referred to the Central Division, resulting in bifurcation of the two proceedings in which case either: - the infringement action is stayed by the local/regional division, pending the outcome of the revocation action; or - the infringement action is not stayed, with the two actions being heard concurrently. With the agreement of the parties, all the matters (infringement and revocation) may be referred to the Central Division. Where a revocation action is pending in the Central Division and infringement proceedings are brought, the infringement action may be heard in any relevant division. However, the relevant local or regional division concerned would also have the ability to bifurcate (see above). Bifurcation is a controversial element of the UPC structure. In Germany, different courts hear infringement and validity claims, but this is not the practice in other countries such as England where it is considered advantageous to hear both types of claim in the one set of proceedings. The critics of bifurcation warn that pan- European injunctions (which would be practicallaw.com / December 2013 / PLC Magazine 5

Languages of the UPC Local/regional division Central Division Court of Appeal Default language of state Exceptions Default language of patent Default language of first instance hearing Exceptions Court designates One party requests Parties agree Parties agree Court decides in exceptional circumstances Court approves? YES NO Parties request case transfer EPO language English/French/ German Language of patent Other EU language granted, given the centralised nature of the UPC) could be issued on potentially invalid patents; that is, where infringement proceedings in one court were determined before the validity proceedings had concluded in another court. The adoption of bifurcation may be one element of the new system where the local habits of the various contracting states will have some influence on how prevalent a feature may become. The role of the ECJ Particular controversy has surrounded the role of the ECJ in relation to the UPC system. When the regulation setting up enhanced cooperation for the unitary patent (1257/2012/ EU) (UP Regulation) was in draft form, articles 6 to 8 of the draft gave the ECJ a role in the interpretation of infringement. Those articles contained regulation on substantive patent law, including setting out the definition of direct and indirect infringement. Given that the UP Regulation is an EU instrument, the effect of this was that the scope of patent protection would be a point of EU law, and so would fall under the competence of the ECJ. However, many stakeholders, including the UK government and industry groups, strongly objected to this proposal. The concern was that the involvement of the ECJ in questions of patentability and infringement on appeal was undesirable as there were doubts as to whether the court had the necessary expertise to deal with such matters, and also that its involvement would be likely to cause delay and additional cost. As a result, these draft articles 6 to 8 were removed. Provisions on infringement are set out in the UPC Agreement, with appeals being dealt with by the new UPC Court of Appeal and national law (or German law in the case of non-eu patentees with no EU place of business) being applied. The extent to which harmonisation of infringement case law occurs will depend on all the contracting states amending their national laws to be consistent with the UPC Agreement. While many aspects of patent law are relatively consistent across the national patent laws of the contracting states, areas of disparity remain, such as the law surrounding employee inventions. There remains scope for cases to be brought to the ECJ where national laws differ or if there is a challenge to the UPC s jurisdiction. Languages of the UPC The language of the proceedings will vary depending on where the proceedings take place and/or the language in which the patent was granted (see box Languages of the UPC ). In the Central Division, the language of the proceedings will be the language in which the unitary patent was granted (English, French or German). The majority of patent applications are in English or German. Therefore, in spite of the fact that Paris has been designated as the main seat of the Central Division, one is more likely to hear English or German being spoken in Central Division proceedings in Paris than French. In the local and regional divisions, the general rule is that the official language of the contracting state or designated regional language will apply. However, there are exceptions to the general rule. The local and regional divisions can designate an EPO language or decide that the language of the patent should apply. The parties can also agree that the language of the patent should apply. If the court does not agree to this request, the parties can request that the case be transferred to the Central Division, where the language of the patent will apply. Finally, if only one party requests the language of the patent, the court may agree, provided that the other party s interests are taken into account. Therefore, there will remain an option in all of the courts of first instance to hear proceedings in English, French or German. This may prove an attractive prospect to certain local divisions which may, for example, formally nominate English as an acceptable language to encourage access for Englishspeaking litigants. 6 PLC Magazine / December 2013 / practicallaw.com

The language of proceedings before the Court of Appeal will be the language of proceedings adopted before the relevant division of the first instance court for that case. However, if the language of the patent differs from this, the parties may agree that the language of the patent will apply instead. The Court of Appeal may also apply another EU language in exceptional circumstances deemed appropriate by the court, subject to the agreement of the parties. RULES OF PROCEDURE UPC action timelime Issue identification stage Claim Defence counterclaim Response to counterclaim Interim conference The rules of procedure governing the framework of the UPC will be adopted following the ratification of the UPC Agreement by 13 states (including UK, France and Germany). Substantive stage Identification of issues Decision on whether to order witnesses, experts, separate witness/expert hearing, further evidence Encouragement of settlement 12 months The latest draft rules of procedure were published on 25 June 2013 (the rules) and a three-month consultation period followed, closing in October 2013 (www.unified-patentcourt.org/images/documents/draft-rules-ofprocedure.pdf). The result of the consultation has been passed to the expert committee for analysis, which is due to be completed by the end of 2013. Hearing stage Witness/expert hearing (if any) Oral hearing Judgment The result will finally pass back to the preparatory committee for discussion and agreement, and it is expected that the final rules will be made by May 2014. For the time being, however, the detailed content of the rules remains somewhat uncertain. The rules adopt a substantially continental approach, placing greater emphasis on written submissions by the parties than the oral proceedings, which are expected to last no longer than one day. As a result, the pleadings will need to be more detailed than English pleadings usually are and the arguments set out at an earlier stage. There is, nonetheless, provision for oral proceedings and cross-examination of witnesses, although not for a formal disclosure exercise except where the production of documents is ordered by the court. Another English aspect of the system that has proved controversial with continental lawyers relates to appeals: appeals may be based on points of law and matters of fact but will not constitute a re-hearing and, significantly, there will only be a limited possibility for new evidence or submissions if these are highly relevant and could not reasonably have been made before the court of first instance. Main steps in UPC action The key aspects of the procedure are summarised below (see box UPC action timeline ): Written procedure. This involves an exchange of written pleadings between the parties. These are intended to be detailed. For example, the statement of claim must set out the full facts, evidence (if available) and arguments, including the party s position on construction of the patent claims. In addition to the exchange of claim and defence, the statement of defence may also include a counterclaim for revocation, to which the claimant may respond. Interim procedure. This provides for the preparation for the oral hearing under the control of the judge-rapporteur (generally, the most senior judge on the panel) tasked with case management. Such preparation may include holding an interim conference, designed to identify the main issues and determine which points are in dispute. The conference is also aimed at establishing settlement discussions. This stage is designed to be thorough and detailed. The parties will have to justify to the judge-rapporteur any request they make, such as seeking the production of further evidence or documents on a particular issue. Oral procedure. This provides for the hearing of the parties oral submissions, and those of their experts and witnesses. Submissions are under the control of the presiding judge (who will also generally be the most senior judge on the panel). Limitations on submissions may be imposed where the panel is considered to already be sufficiently informed, or where the presiding judge wishes to control the questions put to experts or witnesses. Equally, testimony is restricted to issues identified by the judgerapporteur or presiding judge. Evidence. There is a duty to produce evidence that relates to contested facts. The court may, at any time during the proceedings, order a party making a statement of fact to produce evidence that lies in that party s control. Typically, orders for the production of documents will be made during the written and interim procedures. However, there is no automatic discovery procedure and, consequently, reliance is placed practicallaw.com / December 2013 / PLC Magazine 7

on independent investigations conducted by the parties before the proceedings start. Where there is concern that evidence may, for example, be destroyed, powers to preserve relevant evidence are available to the court. It may, on the application of a party, make an order to preserve evidence (a saisie type procedure) and may order the inspection of products, devices or premises. Experts. In certain circumstances, the relevant division of the UPC may conclude that the technical knowledge of an expert is necessary and may appoint one. The parties to the proceedings are given the opportunity to suggest the required skills and knowledge and the possible identity of the expert. The parties will be invited to comment on the expert report and the expert will be present at the oral hearing and be open to questions from the court and the parties. It is also open to the parties to put forward their own expert evidence. This is an issue that should be raised before the judge-rapporteur during the interim procedure. Witnesses. A party wishing to offer witness evidence may lodge a written witness statement. Where a party is unable to obtain a written statement, it can apply to the court for the hearing of a witness in person. The court also has the power to call a witness, independent of any application from the parties. Witnesses and experts will only be heard during the oral procedure if that is ordered during the interim procedure. They may be heard either during a separate hearing before the panel, which will generally be open to the public, or during the oral hearing. If heard during the oral hearing, the panel and the parties (under the control of the presiding judge) may ask questions. Provisional measures. The court may grant injunctions against alleged infringers, or make continuation of potentially infringing acts subject to payment into court of a guarantee to ensure that adequate compensation is available to the rights holder. An application for provisional measures may be lodged by a party before or after proceedings have been started. The court has discretion on what action it then takes. It can inform the defendant and invite it to lodge an objection, summon the parties to an oral hearing or summon the applicant only to a hearing. In exercising this discretion, the court will take into account factors such as the urgency of the action or whether the patent has been upheld in opposition proceedings or been the subject of any other court proceedings. In deciding whether to grant an injunction, again this is subject to the court s discretion, weighing up the interests of the parties and the potential harm that will result in the grant or refusal accordingly. If an injunction is granted, the court may order the patentee to provide adequate security in order to compensate the alleged infringer in the event that the court revokes the order. Final measures. While damages cannot be punitive, they will be made appropriate to the harm suffered as a result of any infringement and may take account of lost profits and/ or unfair profits of the infringer. The court may also order permanent injunctions, corrective measures (such as product recall and destruction) and dissemination of the decision in the public media. Enforcement. Decisions of each division of the UPC are directly enforceable in each contracting state and may have periodic payment penalties attached for failure of a party to comply with the terms of such decision. Costs. The UPC is designed to be self-financing, with the costs required to operate it being sourced through the court fees paid by the parties. The level of the fixed fees was omitted from the draft rules that were released on 25 June 2013. Consequently, the level of fees and any comparison with current procedural costs in Europe cannot be determined at this stage. According to the UPC Taskforce, it appears unlikely that a concrete fee structure will be in place until mid 2014. IN PRACTICE At this stage, much of the detail about the procedure for the new court system remains in flux. For example, the details of the circumstances in which patentees can opt in and out of the unitary patent system are not fixed and could have a significant impact on the uptake. The costs of the new system remain unknown, although the fact that the system is to be self-financing is a cause for concern among potential users, as it seems likely to lead to higher costs than the current European patent system. The choice of when and if to use the new system will be a question that any patent owner will need to consider on the basis of its own particular circumstances. The choice may also be different according to the type of patent rights. Which system? A potential patentee will need to balance a number of factors including: Territorial scope of the unitary patent. Does the broader scope and centralised application and enforcement system justify the cost of application, prosecution and renewal and the risk of a central attack (which is increased by the fact that the patent will be registered in more countries)? For patentees that traditionally file in a small number of countries, national patents may be more attractive. For others, the coverage of a classic European patent may be enough. The ability to opt out. In many cases, subject to the level of the fees (yet to be set), it will make sense for patentees to opt out. This is particularly so in the early stages until there is some indication of how the system will work in practice. Opting out will give patent owners a chance to assess whether the benefit of a central infringement action with cross-border remedies outweighs the disadvantages, in particular, of a central validity attack. Furthermore, while the detailed provisions are not settled, it looks as if a patentee will be able to opt back in in order to bring infringement proceedings centrally. The downside of not participating in the system is the loss of an opportunity to influence the way in which it develops. The UPC will not be compulsory for some years. The enforcement system will eventually become compulsory for unitary patents and classical European patents. Patentees wanting purely national protection, enforcement and validity challenges will need to file separate national patents. However, the hybrid system with opt-outs and the option for local enforcement is likely to remain in effect until at least the 2020s. Consequently, the scope for forum shopping will remain and the different characteristics of local systems will be important factors for parties choosing their enforcement strategy. Patentees will need to think about enforcement options at the time of prosecution and later when considering proceedings. The filing stage The key question will be whether to apply for a European patent of traditional scope, one with unitary effect or a series of national 8 PLC Magazine / December 2013 / practicallaw.com

patents. Various factors will be relevant to the decision, including: Cost. Territorial coverage. Increased chance of validity attack from different jurisdictions and parties. Risk of invalidity throughout the region rather than one jurisdiction. The value of the patent to the patentee. Availability of central enforcement. The value of the patent as a deterrent. The location of the likely potential infringers. Enforcement In some cases, the patentee can choose between a local or regional division and also the Central Division, depending on the location of the infringing acts and the location of the defendant. As the procedural rules are finalised and developed in practice, the hope is that there will be increased harmonisation of procedure. However, it will be some time before the differences between the different available locations become apparent. Inevitably, the local and regional courts are likely to have a strong influence from the jurisdiction in which they are based. Local divisions will normally have the highest composition of local judges. Regional divisions will have two out of four judges from the region, but they may be from different countries. The location of the court is also likely to have an impact on the litigation procedure and interpretation adopted. However, it is difficult to predict precisely how the panel of judges, with mixed national traditions, will interpret the new rules. Judges for the Central Division are drawn from across the contracting states and the composition of the court and its approach to particular cases may vary considerably. A litigant familiar with English courts might choose to bring proceedings in London, where there should be an experienced panel of judges in the Central Division or local/ regional division. Forum shopping The new system offers scope for forum shopping. For a significant period, the Related information This article is at practicallaw.com/7-548-6465 Topics Intellectual property Patents patentee will have the opportunity to opt out of the UPC system for its European patents. A different choice of jurisdictions will therefore be available to patentees, based on the bundle of national rights under the European patent. The patentee could choose local enforcement in a limited number of jurisdictions or opt back in to seek a crossborder injunction. A potential defendant has fewer options to influence the choice of forum, since an action for revocation must be brought in the Central Division, but may be moved to a local or regional division if infringement proceedings have already been initiated. Similarly, a declaration of non-infringement must be brought in the Central Division, but may also be transferred to a local or regional division if infringement proceedings are started within three months. In addition to the choice of court, in some cases the parties can also influence the language of the proceedings and this may be a reason for choosing a particular court (see Languages of the UPC above). The way in which the UPC system operates in practice will be crucial to its success. At this stage it is difficult to predict how the procedure will develop. To select the best Other links from practicallaw.com/ topic2-527-7105 topic2-103-1306 Practice notes EU unitary patent 3-521-2397 Overview of patents 1-107-3660 Patent box 8-521-1550 Patent box: overview 1-521-8606 Registration of interests in UK patents and patent applications 2-201-3387 Previous articles The unitary patent: a new patent and court system for Europe (2013) 8-544-0047 Patent boxes: making the most of the new regime (2012) 9-521-5388 European patent harmonisation: wishful thinking? (2011) 1-513-2448 European patent litigation: the Gordian knot (2011) 0-505-1292 Transferring intellectual property rights: avoiding the pitfalls (2011) 2-504-4154 For subscription enquiries to PLC web materials please call +44 207 202 1200 strategy for the UPC, it will be critical to gain experience of the courts in operation to see, for example: The extent to which divisions grant interim relief and on what basis. The degree of influence that national traditions will have on local and regional courts and, to some extent, the Court of Appeal. The impact of the mix and number of judges of different nationalities and technical judges, particularly in the Court of Appeal. The difference in approach in local and regional divisions. The extent to which appeals will revisit the issues at first instance. The reliance on expert evidence (currently central to UK proceedings) and the use of court experts. Susie Middlemiss is a partner, and Adam Baldwin and Laura Balfour are lawyers, in the intellectual property group at Slaughter and May. practicallaw.com / December 2013 / PLC Magazine 9