Court of Appeal
The Court of Appeal has its seat in Luxembourg.
Judiciary
All divisions within the Court of First Instance have multinational panels of both legally and technically qualified judges, with three judges drawn from at least two different participating Member States (the parties may agree to a single judge). This is intended to provide the necessary counterbalance to any concerns of inconsistency of approach between panels in different participating Member States. The parties or a Local or Regional Division panel may request an additional technical qualified judge with qualifications in the field of technology concerned.
In the Central Division, panels are a multinational composition of two legally qualified judges and one technically qualified judge.
The Court of Appeal has a multinational panel of five judges (three of whom are legally qualified and two of whom are technically qualified).
Forum shopping
Local / Regional Divisions hear cases relating to actual/threatened infringement of patents and SPCs and related defences, including counterclaims concerning licences.
A patentee (or exclusive or non-exclusive licensee where appropriate) has a choice as to where to start infringement proceedings. First, it can bring the claim in the relevant Local / Regional Division where the actual or threatened infringement has occurred or may occur. Given that the alleged infringement may be occurring in a number of EU countries, this gives the patentee the option of bringing proceedings in a state it considers more favourable. Alternatively, it may bring the claim in the Local / Regional Division where the defendant (or, where there are multiple defendants, one of those defendants), has its residence, or principal place of business or place of business. Patentees may consider relevant factors such as speed and judicial experience.
In contrast, a party seeking to clear the way by applying for a declaration of non-infringement or for revocation at the UPC has no such choice – it must start proceedings in the Central Division. Further, the patentee can still seek to gain control of the jurisdiction. For example, an action for a declaration of non-infringement before the Central Division will be stayed if an infringement action effectively between the same parties is begun before a Local / Regional Division within three months, and may be stayed if it is brought after that three month period.
A patent challenger can also oppose the patent at the EPO within 9 months of grant; and during the transitional period it can bring revocation proceedings before a national court in relation to classic European Patents (subject to rules in the Re-Cast Brussels Regulation).
Potential defendants concerned at the prospect of having to defend proceedings in perceived ‘pro-patentee’ participating Member States may need to consider structuring their operations so as to avoid the possibility of those States having jurisdiction.