The Unified Patent Court (UPC) is gaining momentum and looks increasingly likely to come into force in 2022 following a flurry of recent developments.
For the UPC to come into force, a number of EU Member States need to approve an administrative update (the Protocol on the Provisional Application of the UPC Agreement, or “PAP-Protocol”) to enable a “soft-start” period to commence. Following the resolution of a third constitutional challenge in Germany, a number of significant and positive steps have been taken by participating Member States which mean we are increasingly sure the court is finally on its way.
Most recently, on 27 September, Germany ratified the PAP-Protocol. According to the UPC Preparatory Committee “this is a decisive step on the way to the establishment of the Unified Patent Court”. Two further ratifications of the PAP-Protocol are required in addition to Germany. Helpfully, Slovenia has also ratified the PAP-Protocol and the chairman of the UPC Preparatory Committee previously indicated that the national process was almost concluded in Austria (as at 1 September 2021). More news on ratification in Austria is expected soon.
Once the additional ratifications are complete the PAP-Protocol will enter into force triggering a provisional application phase or soft-start period. The UPC Preparatory Committee predicts this could happen towards the end of 2021 with the UPC becoming operational in Autumn 2022, at which point the EPO will be able to start granting Unitary Patents (UPs). The soft-start period will also allow staff and judges to be recruited and the underlying systems to be made ready for the new court.
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.
Regardless of how the UP and UPC develops, there are no implications for the current European patent application system administered by the EPO, which is entirely separate from the UPC and the EU. 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.