Separated, united or a bit of both? Infringement and validity at the Unified Patent Court

Abstract

The so-called separation principle, according to which claims for infringement and the validity of a patent are assigned to different specialized courts, is a peculiarity of the German patent system, albeit not unique to it. Much more widespread across Europe is the so-called principle of unity, which provides infringement and validity to be decided jointly at the same court. The drafters of the Agreement on a Unified Patent Court (UPCA), however, did not favour one principle over the other, and thus did not opt for a bifurcated or a non-bifurcated system; rather they decided in favour of a hybrid system. Against this background, at the Unified Patent Court (UPC), the interplay of infringement and validity is rather complex. What this looks like exactly is the focus of this article, which also keeps an eye on the legal situation in Germany.