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Unified Patent Court:
Only 19 minutes time difference!
Can only 19 minutes “turn around” the whole procedure?
(Article by Thomas Rössler, Ph.D., LL.M.)
According to the opinion of the Unified Patent Court in first instance (UPC_CFI_1/2023, ORD_560432/2023, 08/24/2023) this question has to be answered in the affirmative! On June 1, 2023, a patent revocation action was filed at 11:26 and, only 19 minutes later, an infringement action was filed at 11:45. Both actions involve the same patent and the same parties.
Now, the Agreement and the Rules of Procedure of the Unified Patent Court, newly created in Europe and with supranational jurisdiction, stipulate that the revocation action would have to be dismissed as inadmissible if the infringement action had been filed earlier. This is because the infringement action (Munich Local Division) would block the patent revocation action before the Central Division. The idea is that the revocation action would then also only be admissible in the context of a counterclaim before the Munich Local Division, which has already been called upon.
The Court of First Instance (CFI), through its judge-rapporteur, has now ruled in favor of the applicant: 19 minutes faster is therefore faster, and the invalidity action is therefore admissible as a result.
Different approach at the EPO: Only the day matters.
In contrast to the view of the newly created court, however, the principle that the day is the “smallest relevant unit of time” is regularly applied in European patent grant proceedings before the European Patent Office (EPO). For example, publications on the day before filing a patent application are already relevant prior art, but on the same day they are not (regardless of the time). Or a divisional application may be filed for a patent application on the day before a patent is granted in order to protect further aspects of the invention. Again, this is not possible on the same day (the day on which the notice of grant is published) – that is, even if the filing of said divisional application had an earlier time of day than the notice of grant.
The conclusion: In the future, even stronger “quick action” can be expected before the Unified Patent Court.
(Day)Time is of the essence.
Incidentally, this initial situation was triggered by a failure of the court’s case management system on its first day of operation, presumably due to an overload caused by the many inquiries. As a result, the parties had to resort to paper submissions.
European Patent Attorney
European Patent Litigator (Representative before the UPC)
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