UPC ahead!

UPC ahead!

Following Austria’s ratification with the General Secretariat of the Council of the European Union, the  Protocol on Provisional Application of the UPC Agreement has entered into force today, 19 January 2022.

As announced by the UPC Preparatory Committe (here):

This event marks the start of the Provisional Application Period (PAP) and the birth of the Unified Patent Court as an international organisation.

More information coming soon.

Philippe OCVIRK

Unitary patent package – almost there?

The German Federal Government deposited on 27 September Germany’s instrument of ratification of the Protocol on the Provisional Application (PPA) of the Unified Patent Court Agreement (UPCA).

This is a decisive step on the way to the establishment of the Unitary Patent package, which consists of the new European unitary patent (granted by the EPO) and the setting up of the Unified Patent Court.

The provisional application is required to establish the legal capacity and organizational capability of the UPC. During the PAP phase, the governing bodies of the Court will be assembled, budget and IT systems as well as finalization of the recruitment of the judges of the Court. The Preparatory Committee foresees that approximately eight months will be required to conclude all the work that needs to be done during the PAP.

Germany’s ratification of the PPA comes after several years of doubt, during the examination of the Agreement by the German Federal Constitutional Court (FCC). Following the decision of the FCC published in July this year the German law for the ratification of the UPCA and its Protocols was signed by the President and published in August allowing Germany now to proceed with ratification.

Germany’s ratification enables the PPA to come into force (and therefore the provisional application period to start) as soon as two more countries ratify the PPA or otherwise consent to be bound by the provisional application of certain UPCA provisions.

One of those countries is very likely to be Slovenia (which is hosting in Ljubljana one of the seats of the UPC Mediation and Arbitration Centre). Slovenia’s legislation ratifying the PPA came into force on 24 September 2021 when it was published in Slovenia’s Official Gazette although the Council of the EU has not yet recorded the deposit of the instrument of ratification.

Austria is also expected to ratify the PPA shortly.

Further signs of activity on this topic:

–       An overview of the state of play for entry into effect of the unitary patent package was due to be addressed during the Competitiveness council on 29 September 2021;

–       The Select Committee (dealing with the Unitary  patent) of the EPO Administrative Council will meet on 14 October 2021.

Alexander Ramsay, Chair of the UPC, estimates that the UPC will start operations around mid-2022.

Philippe Ocvirk

UK to ratify the Unified Patent Court Agreement

Today at the EU’s Competitiveness Council meeting in Brussels, the UK announced that it is proceeding with preparations to ratify the Unified Patent Court Agreement.
This puts an end to the uncertainty period that started with the Brexit vote back in June this year.

The Unified Patent Court will be competent for classic European patents and have exclusive jurisdiction for the new European patent with unitary effect (Unitary Patent).
The Unitary Patent is an EU wide patent that can be requested at the grant stage of the conventional European patent. The Unitary Patent Court will permit EU-wide enforcement of European patents, making them more valuable.

Ratification by 13 countries is required for the new system to start, including France, Germany and the United-Kingdom. Today, 11 countries have ratified (AT, BE, BG, DK, FI, FR, LU, MT, NL, PT, SE), and 4 are ready to ratify – including the UK. Germany is reportedly ready for ratification.

With this good news, entry into force of the Unitary Patent system may again be expected in 2017.

Philippe Ocvirk

Luxembourg approves the Unified Patent Court Agreement

On 18 March 2015, the Luxembourg Parliament approved the Agreement on the Unified Patent Court (UPC). Upon signature by the Grand Duke and ratification, Luxembourg will join the 6 EU states that are already formally in the game (Austria, Belgium, Denmark, France, Malta and Sweden).

The creation of the Unified Patent Court is a major evolution for patent enforcement. It will be competent for infringement and nullity actions for both classical European Patents and European Patents with unitary effect. A patentee will thus be able to enforce his rights in all the member States though a single court action.

Luxembourg is in the heart of the new system: the Court of Appeal of the UPC and the Courts’ Registry will be located in Luxembourg. Of course, the Court of Justice of the European Union (CJEU) is also located in Luxembourg, and will have the final say on any points of European law referred by the Unified Patent Court.

Furthermore, Luxembourg is centrally located between the Paris and Munich sections of the Central Division of the UPC, and the Munich and The Hague offices of the European Patent Office.

Philippe OCVIRK