The UPC will enter into force the 1^st June 2023, with the sunrise period starting 1^st March 2023. This means that the UPC will begin handling cases from 1^st June 2023. There will be a period of at least seven years where the UPC will share jurisdiction with the national courts, with the possibility to extend the period with an additional seven-year period.

The sunrise period purpose is to allow for patentees to opt-out their European patents before a potential “lock-in”. The lock-in effect occurs when a proceeding, such as infringement or revocation, is initiated in the UPC after the UPC is in force. If a proceeding is initiated in the UPC the patentee is prohibited to opt-out said patent. As such the UPC has decided to enact a sunrise period, allowing for patentees to opt-out their patents before a competitor can lock-in the patent.  

The sunrise period will start from the date of Germany’s ratification of the Unified Patent Court Agreement (UPCA) and end three months after said date. The sunrise period will begin on the 1^st March 2023 and end 1^st June 2023, when the UPC enters into force.

17 countries will participate from start in March 2023; these are the following:
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Austria, Belgium, Bulgaria, Germany, Denmark, Estonia, Finland, France, Italy, Lithuania, Luxembourg, Latvia, Malta, Netherlands, Portugal, Sweden, Slovenia.

The UPC will have exclusive competence over an exhaustive list of cases provided in article 32(1) UPCA. The main types of actions will be related to revocation and infringement. 

In general, the UPC will have exclusive competence for actions concerning EP that are not opted-out and Unitary patents, and after the expiration of the transitional period traditional EPs and applications. During the seven-year transitional period, actions regarding an EP may be brought before national courts as well as the UPC. For more details regarding the extension of their exclusive competence, see below art. 32(1) UPCA:
 
(a) actions for actual or threatened infringements of patents and supplementary protection certificates and related defences, including counterclaims concerning licences;
 
(b) actions for declarations of non-infringement of patents and supplementary protection certificates;
 
(c) actions for provisional and protective measures and injunctions;
 
(d) actions for revocation of patents and for declaration of invalidity of supplementary protection certificates;
 
(e) counterclaims for revocation of patents and for declaration of invalidity of supplementary protection certificates;
 
(f) actions for damages or compensation derived from the provisional protection conferred by a published European patent application;
 
(g) actions relating to the use of the invention prior to the granting of the patent or to the right based on prior use of the invention;
 
(h) actions for compensation for licences on the basis of Article 8 of Regulation (EU) No 1257/2012; and (i) actions concerning decisions of the European Patent Office in carrying out the tasks referred to in Article 9 of Regulation (EU) No 1257/2012.

The Unified Patent Court (UPC) is an international court that will deal with proceedings such as infringement and revocation, meaning that if you choose not to opt-out you will be able to initiate infringement proceedings in the UPC.
 
The most important aspect of the UPC is that the owner of EPs, that are not opted out, will have the benefit of initiating a central infringement proceeding with effect in all the member states of UPC which the EP is validated in. However, the owner risks having the same EP revoked in these states, and once a revocation action has been filed you will only have 3 months to prepare a defense.

There will be two court instances, with the possibility for the EU Court of Justice to issue preliminary rulings in both instances.
 
The first instance is divided into local, regional and central divisions. The premise is that local and regional divisions handle infringement cases while the central division has exclusive jurisdiction over revocation actions and declarations of non-infringement.
 
Some countries, such as Germany, have four local divisions. Whereas Sweden is included in the Nordic-Baltic regional division together with Lithuania, Estonia, and Latvia. This is the only regional division thus far.
 
There will be three central divisions located in Paris, Munich and probably Milan (the location is still undecided). The industry for which the patent relates to decides which central division handles the case.
 
The second instance is a Court of Appeal in Luxembourg and will hear cases appealed in first instance, i.e. appealed decisions in local, regional and central division.

Local and regional divisions will generally hear cases regarding infringement actions and counterclaims for revocation in the same proceeding. However, the local and regional division has the following options:
 
a)    Deal with both the infringement claim and the invalidity claim in the same process, when a suitable technically competent judge has been assigned to the process,
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b)    Refer the counterclaim to the central division and deal with the infringement claim,
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c)     As “b” but suspend the infringement claim,
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d)    Refer the entire process to the Central Division, however, both parties need to agree to this.

The language of proceedings before any local or regional division of the Court of First Instance is an official European Union language designated by the states sharing a regional division. Sweden will be part of the Baltic regional division, which has decided to designate English. If both parties agree to use the language in which the patent was granted this is possible, provided that the panel hearing the case approves.
 
Before the central division, the language of proceedings will be the language in which the patent was granted (English, French or German). The majority of EP patent application are in English or German, therefore even the proceedings in the central division in Paris will typically be held in English or German.
 
In the Court of Appeal, the language of proceedings will generally be the language that was used in proceedings before the Court of First Instance of that case.

The total cost for an action before the UPC will probably be significantly higher than one national proceeding since the court fees are relatively high and the procedural demands that is placed on parties. The UPC proceedings will probably only be cost effective if compared to three or four national cases due to the front-loaded procedural system described above.
 
There will be heavy demands on the written procedure preceding the oral hearing. The claimant must produce all evidence and arguments in the statement of claim, and the defendant must produce all evidence and arguments in the statement of defence (front-loaded procedural system). This combined with the fact that the deadlines are comparably short will probably result in higher costs.
 
Also, the court fees must be considered high which is described below.

The court fees for an action before UPC are in detail explained in Rule 370 Rules of Procedure of the Unified Patent Court. The fees, for bringing an action before the UPC, consist of a fixed amount based on the type of action and, for some cases, a variable amount based on the value of the action. Small enterprises and micro-enterprises may only be required to pay 60 percent of the fixed and value-based fees.
 
For infringement actions there is a fixed court fee of EUR 11,000 plus a value-based fee of up to EUR 325,000, if the value of the infringement action proceeds EUR 500,000. For revocation actions, the court fee will be EUR 20,000, without a value-based fee.
 
Compared to fees paid to Swedish courts, which is around EUR 280, the fees must be considered considerably higher.
 
For counterclaims for revocation in an infringement proceeding and a counterclaim for infringement will be subject to the same costs. In other words, the costs would be added to the costs of the main claim.
 
An appeal to the Court of Appeal will generally cost the same as in lower court and will be divided in the same way in relation to the different types of action.
 
Fixed fees:
-       Revocation action (R. 47): EUR 20,000
-       Counterclaim for revocation (R. 26): Same fee as the infringement subject, limited at EUR 20,000
-       Infringement action (R. 15): EUR 11,000
-       Counterclaim for infringement (R. 53): EUR 11,000
-       Action for declaration of non-infringement (R. 68): EUR 11,000
-       Application for provisional measures (R. 206.5): EUR 11,000
-       Application to determine damages (R. 132): EUR 3,000
 
Value-based fees for infringement action:

The possibilities, and risks, of recovering reasonable legal costs and expenses of the successful party is explained in Article 69 UPCA, Rule 152 and Rule 370.6 of Rules of Procedure of the Unified Patent Court.
 
As commonly the case, the unsuccessful party will generally have to pay the other party’s cost of proceedings, including legal fees etc. However, a ceiling has been imposed on the amount that the successful party may claim in proportion to the value of the action. The ceiling for recoverable costs is at EUR 38,000 for proceedings valued up to and including EUR 250,000 and up to EUR 2,000,000 for proceedings with a value of more than EUR 50,000,000.