The Unified Patent Court (UPC) - another step forward - provisional application period close to commencing

Germany's deposit of its ratification of the UPC protocol on provisional application on 27 September, 2021, and suggestions that Slovenia and Austria may also ratify shortly, mean that the provisional application period during which the practical arrangements for the UPC will be put in place, which this protocol (once sufficiently ratified) will usher in, now looks likely to commence before the end of 2021 and possibly even as soon as October. If so, the UPC could start to function fully from mid-2022, as has been suggested by the UPC Preparatory Committee in recent comments.

The UPC start date is still dependent on the date of Germany's deposit of its instrument of ratification of the UPC Agreement (UPCA) with the EU Council, but once deposited, the new court system will commence on the 1st day of the fourth month after the month in which that deposit occurs. Germany will not trigger this timetable until all the practical arrangements are in place. As the UPC Preparatory Committee commented following Germany full ratification of the protocol this week, "When it is clear that the UPC will be operational upon the entry into force of the UPCA the final ratification of the Agreement by Germany can take place serving as a “gatekeeper” for Member States to ensure a proper process".

Background

The German Government has announced that it has deposited its instrument of ratification of the Protocol on a Unified Patent Court on provisional application (PPA) with the EU Council.  The PPA provides for the provisional application period (PAP) to start, allowing the final preparations to be made for the commencement of the UPC in the certain knowledge that it will actually commence. It enables the necessary legal and practical arrangements to be made in contemplation of the start of the UPC, including the establishment of the Registry and the Mediation and Arbitration Centre, the training and appointment of judges, and the provisions allowing for the UPC Statute and Rules, legal aid, remuneration of judges, the setting up of local or regional divisions, and the creation of the pool of judges. The EPO has commented that the Protocol "should ensure that the Court is fully operational and ready to hear cases on the very day the Agreement formally enters into force". For more on the PPA and PAP see the Introduction section here on our UPC hub.

The PPA requires 13 signatories to ratify it before it can come into effect. Germany is one of the "required ratifiers" but in addition two further ratifications are still needed to make up the 13. These two look likely to be Slovenia - which has now passed the PPA ratification legislation (although this has not yet come into force), and Austria - which has been said to be likely to deposit its instrument of ratification within the next few weeks.

Implications for the timing of the opening of the UPC

The UPC Preparatory Committee recently commented that it thought the PPA could last as little as 8 months and that the UPC could start from mid-2022.  If the remaining PPA ratifications were to be deposited in October 2021, this could mean the UPC might open its doors on 1 June 2022.

Our fully integrated, market-leading team, is on the ground in France, Germany, Italy and the UK and has decades of experience in running multi-jurisdictional patent litigation in respect of our clients' most valuable products, including experience in the jurisdictions which will inform the UPC's procedure in due course. We will be able to use legal, technical and strategic skills from across our whole European team to give you the best advice on your matters, with the qualifications necessary to handle cases whether they are in the UPC or key national courts.

For more information on the UPC and the unitary patent - a new patent system for Europe - and how we can help, see the HSF UPC hub.

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