Diving into the labyrinth of intertwined dreams in Christopher Nolan’s Inception—where each dream level operates under its own rules while influencing the others—sharply illuminates the intricate structure of the European patent litigation system. Within this evolving landscape, patent holders are granted procedural freedom: during the transitional phase of the Unified Patent Court (UPC), they may opt either for the unitary route under the UPC or for litigation before national courts. Much like Cobb and his team determining at which dream level to act, innovators and rights holders must decide on the judicial level most strategically aligned with their goals.
This procedural flexibility increases adaptability but imposes complex responsibilities. Each layer of litigation has its own dynamic, and unless the connections between them are properly managed, the result may be confusion instead of coherence. The promise of a unified patent system risks becoming a patchwork of fragmented decisions unless mechanisms for coordination, consistency, and legal dialogue are strengthened.
Jurisdictional Duality: Between Strategic Depth and Systemic Fragmentation
The first structural challenge stems from the UPC’s exclusive jurisdiction over European patents with unitary effect, while conventional European patents remain subject to shared jurisdiction between the UPC and national courts for seven years. This duality, enshrined in the Agreement on a Unified Patent Court (OJ C 175, 20 June 2013), creates a fertile ground for parallel litigation. Actions concerning the same invention can be brought before different fora, potentially yielding divergent assessments of infringement or validity. The litigation strategy becomes a tactical game, enabling parties to exploit procedural overlap—especially where no duty exists to notify courts of other ongoing proceedings.
Lis Pendens or Parallel Worlds?
To address such risks, the UPC’s Rules of Procedure incorporate lis pendens and related-action mechanisms from Brussels I bis. According to the Rules of Procedure of the Unified Patent Court (25 July 2022), when two courts are seized of actions involving the same parties and similar claims, the second-seized court may stay proceedings upon objection. However, practical obstacles hinder the effective implementation of this safeguard. The notion of “identity of parties” becomes blurred when large industrial groups litigate through multiple subsidiaries, and the absence of a real-time alert system makes it nearly impossible to detect concurrent proceedings promptly.
Beyond procedural doctrine lies an institutional gap. No communication system currently links the UPC to national courts. Furthermore, there is no legal obligation requiring parties to inform the Central Register when launching parallel actions. Despite this, early practice has shown encouraging signals. Judges from different UPC divisions have initiated informal coordination to harmonize procedural practices. As reported by the Financial Times at the end of May 2024, 373 cases had already been filed and the UPC’s case management approach was beginning to reduce procedural delays (Financial Times, 13 June 2024). But informal meetings, however promising, cannot replace structured governance. Coordination needs to be institutionalized.
Perhaps the most fundamental challenge is ensuring the UPC’s integration within the EU’s legal order. In its Opinion 1/09, the Court of Justice of the European Union made clear that any court exercising jurisdiction in EU law must preserve the autonomy and coherence of that law. The UPC Agreement, however, only permits discretionary referrals to the CJEU in Articles 21 and 22, without any timeline, threshold, or structured procedure. This loophole may lead to inconsistent applications of EU law, eroding both uniformity and legal certainty across Member States.
Building a System Worthy of Its Ambition
Several reforms are worth considering.
The creation of an automated alert system within the Central Register would ensure that any new filing is immediately signalled to other divisions and to national courts when appropriate. This would facilitate the immediate triggering of stay provisions and reduce procedural redundancy.
Institutional coordination should also be formalized through the adoption of a Judicial Coordination Charter by the UPC’s Administrative Committee. This Charter could define how to share case files, exchange technical reports, and establish a standard timeline for stay decisions, while also mandating regular meetings between UPC division presidents and national judges.
Legal integration with the EU would be enhanced by a fast-track preliminary reference procedure, enabling any UPC division to refer questions of Union law to the CJEU without paralyzing ongoing litigation. To promote interpretive coherence, judges should receive ongoing training through bilateral workshops and judge exchange programs—initiatives already recommended in the European Patent Office’s Unitary Patent Guide (November 2024).
Finally, a Mixed Evaluation Committee, composed of representatives from the UPC, the CJEU, and Member States, could be tasked with issuing interpretative guidelines, updating the Rules of Procedure, and proposing amendments to the UPC Agreement. Such a body would serve as a forum for harmonization and institutional memory, and could also study national case law predating the UPC to identify best practices and avoid abrupt discontinuities.
Envisioned this way, the future of European patent litigation starts to resemble the final dream level in Inception: a multilayered system where each level preserves its uniqueness but contributes to the integrity of the whole. With strong procedural safeguards, formal coordination mechanisms, and a shared judicial culture, the European system can transcend its current duality and evolve into something greater—swift, predictable, and truly unified.
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