UPC: an interview with Judge Sam Granata

It hasn’t been a smooth road for the Unified Patent Court (UPC) since its establishment was approved by 25 EU member states in 2013. Since then, the proposed court has had to face some unforeseeable obstacles, perhaps most notably the UK’s 2016 vote to leave the EU, and the German Constitutional Court’s delaying its ratification of the UPC Agreement.

However, although the UPC has yet to be adopted, patent owners should approach the UPC with optimism rather than caution, says one judge.

“Users should not be afraid of this new court,” says Sam Granata, a judge at the Court of Appeal Antwerp, Belgium. Granata does not represent the UPC but was involved in the preparatory stage as an interested judge.

He explains that it is natural for patent owners to be cautious of the introduction of the UPC, as people often fear what they do not know. However, he adamantly believes that the UPC will help patent owners, not hinder them.

Granata believes that the UPC will be not be revolutionary in its interpretation of patent law, but is built towards further harmonising the patent system within Europe.

“The main UPC rules and proceedings that are important for patent owners—especially during the transitional phase—are the opt-out procedure and whether they want to opt out of the system,” he says.

The opt-out option gives patent owners the choice to step away from the jurisdiction of the UPC and the associated unitary patent during the court’s seven-year transitional phase and stick with the national court systems instead. At this stage, the UPC would no longer have any jurisdiction over the patent.

Teething problems

Granata explains that the transitional period came into existence based on the “insecurity” that patent owners felt about the introduction of the new system.

While patent owners will have the freedom to opt out of the UPC, there are still teething issues surrounding just how this process will operate. Granata says there have been different interpretations of how the opt-out rule can, and should, be used.