Tuesday, 30 April 2013

Comptentence of the Italian local division of the Unified Patent Court

As pointed out earlier unitary patents will not cover Italy but Italy did sign the agreement on the UPC.

The UPC will be competent both for classical EP bundle patents and for EP unitary patents. I think this means that any court of the UPC may hear, say, an action for infringement in Italy (assuming the court is competent) and that conversely, the Italian court may revoke your patent for all states.

This could lead to a curious case. Suppose I only have a unitary patent, and that an Italian company infringes my unitary patent in Germany. As the patent owner, I  then sue with the Italian local division of the UPC. The Italian division could then revoke the unitary patent for the whole of the EU, even though the patent is not even valid in Italy.

Based on the articles of the Unified patent court, I see no reason why this scenario could not work. 

However, the preamble of the agreement notes that "Member States which have decided not to participate in the enhanced cooperation in the area of the creation of unitary patent protection may participate in this Agreement in respect of European patents granted for their respective territory".

Does this mean that the Italian division will actually not be competent for unitary patents? Or does it just mean, that Italy accepts that the Court gets competent for a particular set of patents covering Italy? In other words, it rules out the situation in which an Italian court becomes competent for patents valid in other countries, yet those other countries do not become competent for Italy.

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