The Unified Patent Court (UPC) is an international court for handling disputes relating to European patents. At the time of writing, the UPC has locations in 15 different EU member states and serves 17 EU member states, which, between them, have 18 different official languages. Furthermore, European patents can be granted in either English, German or French.
With so many different considerations, establishing a simple language regime for the UPC was always going to be a challenge. Here, we try to demystify that regime.
The language of proceedings at the UPC depends on the type of action being brought
The language used in proceedings at the UPC depends on the Division of the Court in which the action is brought, and that in turn depends on the type of action that is being brought.
Actions relating to actual or threatened infringements will generally have to be brought in the Local or Regional Division of the member state in which the alleged infringement occurred (or may occur), or the Local or Regional Division of the member state in which a defendant is resident or has a place of business.
However, if the defendant is not resident in, and does not have a place of business in, a member state, and the member state in which the infringement occurred (or may occur) does not have a Local or Regional Division, then the action must be brought in the Central Division.
Revocation actions and actions for declarations of non-infringement will in general be heard by the Central Division, unless an infringement action between the same parties and relating to the same patent has been brought before a Local or Regional Division, in which case these actions must be brought in the same Local or Regional Division as the infringement action.
With that understanding of the rules governing the choice of venue for an action at the UPC, attention can now turn to the language of the proceedings.
English is expected to be the dominant language at the Central Division
At the Central Division, the language in which the patent at issue was granted will be the language of the proceedings. As the majority of European patents are granted in English, it is widely expected that English will be the dominant language at the Central Division.
All the Local and Regional Divisions have designated English as a language of proceedings
At Local Divisions, the language of proceedings will be an official language of the member state in which the Division is located, and at Regional Divisions the language of proceedings will be an official language that has been designated by the member states that share that Regional Division.
However, the UPC Agreement also allows contracting member states to designate one or more of the official languages of the European Patent Office (i.e. English, German and French) as the language of proceedings of their Local or Regional Division.
It was known before the UPC came into effect on 1 June 2023 that the Local Divisions in Austria, Belgium, Denmark, Finland, The Netherlands, Portugal and Slovenia, and the Nordic-Baltic Regional Division (covering Sweden, Estonia, Latvia and Lithuania), had designated English as a language of proceedings. Proceedings can therefore be brought in in those Divisions in English as well as in the relevant official languages.
It was announced on 1 June 2023 that the Local Divisions in Germany, France, Italy had designated English as a language of proceedings, meaning that proceedings can be also brought in English in those Divisions.
Consequently, infringement proceedings can be brought in English at all the Local or Regional Divisions. This is widely regarded as a positive development for potential litigants, given the status of English as the international language of business and the fact that the most European patents are granted in English.
At the time of writing (July 2023), most of the infringement actions brought in the UPC to date are in German, perhaps because these cases would likely have been prepared before the opening of the UPC when it was not clear that the German Local Divisions would adopt English as a language of proceedings. However, now that English is an option at the Local and Regional Divisions, we expect that over time the simplicity and cost effectiveness of operating in English, particularly for international litigants, will lead to an increasing number of infringement actions being brought in English at the UPC.