UPC expected to open in 2022

Germany has overcome the constitutional challenges to participation in the Unified Patent Court. On 7 August 2021 the necessary bill to ratify the UPC agreement was signed into law by the President of Germany. Germany now merely needs to deposit the instrument of ratification at a time of their choosing to commence the timetable for coming into effect.

In the meantime, Austria has moved closer to ratifying the Protocol on Provisional Application (PPA) of the UPC Agreement. Austria passed a bill through Parliament on 19 November and ratification was approved by the Federal Council on 2 December 2021. When Austria deposits its instrument of ratification, it will be the 13th state to do so and the UPC Protocol will come into effect. This allows for serious preparation to begin and, in particular, it provides for a budget and authorizes expenditure.

The PPA specifically requires ratification by the UK. But on 27 October 2021 the preparatory committee adopted a draft declaration which stated that the provision in question (Art. 3) is to be interpreted as mirroring Art. 89 of the UPC Agreement – i.e. requiring ratification by the three Member States with the highest number of European patent applications (rather than specifically naming Germany, UK and France), so that hurdle is bypassed. A signing ceremony is planned for the signing of that declaration at a future meeting of the Committee of the Permanent Representatives of the EU state Governments (COREPER).

All other hurdles to UPC are removed

The Protocol on Privileges and Immunities (PPI) to the UPC was signed by representatives of member states during a COREPER meeting in Brussels on 29 June 2016. The protocol, in particular, confers on the judges and staff of the UPC and on state parties doing business before the Court and on its premises and papers, such privileges and immunities in the territories of the states in which the Court is established as are necessary for the exercise of the Court’s official activities. Article 18(1) of the protocol requires ratification by France, Germany, Luxemburg and the UK. The signing of the protocol was just days after the UK referendum vote to leave the EU, and the UK was not represented at the meeting, but given that there is to be no London division of the court, it would seem that the signature of the UK is unnecessary. This would appear to be the view of the Preparatory Committee of the UPC, which has confirmed that the Protocol on Privileges and Immunities to the UPC is already in force.

Removal or replacement of London as a location of a section of the Court of First Instance and re-allocation of cases intended for the London Section of the Central Division of the Court are outstanding details.

The countdown to the UPC can begin

The UPC Agreement comes into force on the first day of the fourth month after ratification by Germany. There are high expectations that Germany will ratify soon and that the four months may take us to a start date as early as October 2022.