Here comes the Unified Patent Court!
Parts of the UPC Agreement are now finally operational

The Unified Patent Court (UPC) has now entered the provisional application, or soft-start, phase following Austria’s decision to deposit its instrument of ratification – as reported by the UPC preparatory committee here. This means parts of the UPC Agreement have come into force ahead of the new court becoming fully operational. The court might be operational as soon as late 2022, but of course more delays are also possible and some commentators suggest that early 2023 is a more likely start date. It seems likely that patentees will need to be ready for the opt-out process sometime in the next eight to twelve months.

For the UPC to come into force, a number of EU Member States were required to approve an administrative update (the Protocol on the Provisional Application of the UPC Agreement) to enable a soft-start period before the court opens its doors. Austria was the last EU Member State to approve the Protocol following ratification by Germany and Slovenia, as previously reported here.

The soft-start period could last as little as eight months and will allow staff and judges to be recruited and the underlying systems to be made ready for the new court. Once the new court becomes operational, it will start hearing disputes regarding any patent granted by the EPO (unless those patents have been opted out) and the EPO will start granting Unitary Patents (UPs).

We expect there will be a “sunrise” period a few months before the UPC opens its doors, during which patentees can opt their existing granted EPO patents out of the court’s jurisdiction. Preparing for the opt-out process should be the focus for all patentees given the importance of filing any opt-outs before the UPC opens its doors (as discussed in more detail on our website here). Our integrated teams of litigators and patent attorneys are on hand to help and advise on strategy, including assessing the merits of opting-out certain patents from the jurisdiction of the UPC in favour of litigation before the national courts in Europe.

As a European IP firm with litigators and patent attorneys under one roof, we are looking forward to offering our clients the chance to both obtain UPs using the existing EPO procedure and enforce their patents across Europe in the UPC.

Further updates on the development of the UPC system are available here, including our landscape tool which summarises the countries involved and our UP cost estimator tool which shows the possible cost savings available from the UP. With the new court and new patent both arriving in a matter of months, it is now time for everyone to start preparing for this new system in earnest.