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The Unified Patent Court: back to reality?

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02/12/2021

The Unified Patent Court – a recap

A long time ago in a galaxy far, far away... In 2012, 25 member states of the European Union took the first steps in establishing a European patent with unitary effect in their territories (the “Unitary Patent”) and a Unified Patent Court that has jurisdiction concerning the Unitary Patent (the “UPC”) by approving two regulations (No 1257/2012 and No 1260/2012). Both regulations entered into force on 20 January 2013, but are not applicable yet as their applicability is linked to the date on which the Agreement on a Unified Patent Court enters into force (the “UPC Agreement”).

Although already published in the Official Journal of the European Union of 20 June 2013, the UPC Agreement only enters into force on the first day of the fourth month after the thirteenth instrument of ratification or accession by a member state has been deposited. Moreover, it is required that the three member states, representing the highest number of European patents in 2012, file an instrument of ratification or accession. To make things even more complicated, the Protocol on the Provisional Application of UPC Agreement (PAP-Protocol) requires the same member states to ratify the PAP-Protocol before the UPC preparations can start.

It is no secret that the ratification process of the UPC Agreement and the PAP-Protocol is where the shoe pinches and has blocked the launch of the Unitary Patent and the UPC up to now. Each year we received hopeful messages that the Unitary Patent and UPC project could soon enter into force. However, each year, these expectations were to be tempered.

Both France and Italy have already ratified the UPC Agreement, and so did 14 other member states. So what is preventing the actual entry into force of the Unitary Patent and UPC project? Germany, as a required member state, did not ratify the UPC Agreement for a long time. Furthermore, the PAP-Protocol is still lacking the required amount of ratifications.

The Unified Patent Court – recent developments

As we all know, the Brexit and the United Kingdom’s decision to withdraw from the project equally caused some delay in the process. Instead of the United Kingdom, Italy got appointed as the replacing third member state that is required to ratify the UPC Agreement and the PAP-Protocol. Since Italy already ratified the instruments, this did not pose any major problems. The final decision on the new location of the central division, instead of London, has however not been taken to this date. Milan and Amsterdam are still in the running as the cities in which the central division will most likely be relocated. It is not known when a decision on the new location will be taken.

As mentioned, Germany’s ratification of the UPC Agreement is one of the final hurdles to take for the UPC Agreement to enter into force. On 27 September 2021, Germany deposited the ratification of the PAP-Protocol. Germany furthermore ratified the UPC Agreement, but is awaiting to deposit its ratification until the UPC is actually up and running.

This brings us to the last hurdle to be taken. The PAP-Protocol still lacks the signature of one member state before entering into force. On 19 November 2021, the Austrian parliament adopted the PAP-Protocol, which is an important step in the right direction. In order for Austria to ratify the PAP-Protocol, the second chamber of the Austrian parliament must approve the PAP-Protocol as well.
Based on said recent developments, the Preparatory Committee of the UPC is expecting the start of the provisional application of the UPC Agreement in 2022. Without doubt to be continued...

 

Should you have any questions regarding this matter, please don't hesitate to contact Sarah van den Brande (s.vandenbrande@liedekerke.com) or Myrtle Gevers (m.gevers@liedekerke.com).