The future perspectives of the European Unified Patent Court in the light of the existing intellectual property courts in the United States and Japan

Abstract

The entering into force of Europe's Unified Patent Court (UPC) on 1 June 2023 shifts the question on whether and how a specialised and unified court should be designed to the question on how the already conceived court shall function to meet the set institutional and substantive goals for the European patent adjudication. Despite the contextual legal and economic differences, the examples of the US Court of Appeals for the Federal Circuit (CAFC) and the Tokyo Intellectual Property High Court (IPHC) can serve as guidance for the new European court, especially in its early days of operation. This article, outlining both the differences and similarities in the origins of the three courts, articulates upon the challenges as well as the achievements of the United States and Japanese examples to shed light on the future perspectives of the UPC and wherever relevant, provide policy-oriented and practical recommendations for those in charge of shaping the UPC's jurisprudence. To this end, it is submitted that particular attention should be paid to ensuring the wide range of competences of the UPC judges; the interinstitutional dialogue between the UPC and the Court of Justice of the European Union (CJEU) as well as the dialogue among the UPC judges, including the encouragement of dissenting opinions; consultation of public, if possible in the form of amicus curiae briefs; and international cooperation with existing specialised IP courts worldwide. Based on evidenced foreign practices, these mechanisms are argued to serve the objectives of avoiding ‘overspecialisation’, achieving uniformity while maintaining accuracy, securing the new court's legitimacy and, finally, fostering global judicial harmonisation.