Update on the Unified Patent Court
On 15 October 2021, the Slovenian government deposited its instrument of ratification for the Protocol on the Provisional Application of Unified Patent Court (UPC) Agreement (PPA) and the UPC Agreement itself. This deposit followed German ratification of the PPA, which took place on 27 September 2021 as well as the German President’s signature of the UPC Agreement and Protocol on 7 August 2021. As a consequence, everything is now legally set for Germany’s ratification of the UPC Agreement. As known, Germany will deposit its instrument of ratification once all preparatory work is complete. We are thus closer to the possible launch of the UPC, but how much closer?
According to the Chairman of the UPC Preparatory Committee, this only remaining ratification by Germany should take place during autumn this year. Austria and Malta are the two next countries which could ratify the PPA. Indeed, a draft law relating to this ratification was submitted by Austria last summer to its parliament. However, Austria appears to have other priorities in its current political agenda, while no recent news updates were released on Malta’s ratification process. The date on which the Provisional Application period and the required implementation of the UPC may start is thus still unknown. In particular, the implementation requires the definition of a budget, the completion of the electronic case management system and the selection and appointment of the judges. In the most optimistic scenario, the Provisional Application period could start as early as the end of 2021, which would render plausible the German deposit next year. As an example, if Germany deposits its instrument of ratification in the third quarter of 2022, then the UPC Agreement could enter into force 4 months thereafter, i.e., end 2022-early 2023. Three months before the entry into force of the UPC Agreement, the sunrise period for opting out European patents and applications from the exclusive competence of the UPC could start.
For the time being, the participating states have still to find a compromise for replacing the London part of the Central Division, either by distributing the litigation cases supposed to be allotted to the London part of the Central Division to the Paris and/or Munich part, or by identifying a new part among the different candidates proposed by the participating states (among others, Amsterdam and Milan).
