The European Unitary Patent System and Unified Patent Court

News & Commentary on Procedure

Ratification Update

The UPC will only enter force once 13 states, including the UK, France, and Germany, have ratified the Agreement.

As of November 2015, 8 states have completed the ratification process :- Austria, Belgium, Denmark, France, Luxembourg, Malta, Portugal, and Sweden.  Finland also appear on-track to ratify following a recommendation from a Finnish working group that the Agreement should be ratified and amendments made to national patent law.

The UK, Germany, the Netherlands, Italy, and Hungary have all also made positive noises about early ratification and so we appear to be at the point of knowing the extent of the Court’s jurisdiction for early cases.  However, there are also mutterings that Germany will withhold their ratification, either to be last or until the UK’s referendum on EU membership.  The former would be understandable, in order to ensure the Court only enters force once all practical arrangements are in place, the latter less so and could lead to significant delay.

UPC Preparatory Committee adopts 18th draft Rules of Procedure

The UPC Preparatory Committee has formally adopted the 18th draft Rules of Procedure (the first version of which was released in July 2015).  The Committee released a press release today, with the following direction, “Those interested in the Court’s operation should familiarise themselves with the text.”  The 18th draft is expressed to be subject to final adaptations including the (yet to be finalised) schedule of court fees which will be incorporated as Annex I to the Rules.

Protocol on the UPC

Representatives of member states have signed a protocol agreeing that certain aspects of the UPC can enter force early.  This will allow IT systems, training of judges, and the registration of opt-outs to be implemented before the Court comes into full operation.

Perhaps the most notable part of this development is that while announcing the protocol, the preparatory committee noted that they expect to complete their work by June 2016 with a view to the Court opening in early 2017.  Previously, a 2016 opening had been mooted.

This announcement does not have any immediate impact, but starts to firm up the date when Patentees will be able to make active preparations for the Court in the form of registering opt-outs.  This is a key decision for Patentees and will impact the status of patent portfolios in Europe.  Patentees should be starting to think about whether they will opt-out their European patents sooner rather than later.

Rules for representation at the UPC

Following a meeting of the Preparatory Committee, draft rules on the European Patent Litigation Certificate and who has rights in the UPC have been published.  These confirm that Patent Attorneys will have the right to conduct litigation, provided they have the required litigation training.  During a transitional period of 1 year registration will also be granted to Patent Attorneys who have completed an approved national course.  This provision appears to cover most nationally qualified Patent Attorneys.

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Kevin Cordina

10th meeting of the UPC Preparatory Committee

18th Draft of Rules of Procedure of the Unified Patent Court published. The Committee also agrees the draft Protocol on Provisional Application of parts of the Agreement on a Unified Patent Court. The draft Protocol will allow the UPC to become “provisionally operational”, especially to allow the recordal of opt-outs of European patents from the jurisdiction of the UPC.

17th Draft of the Rules of Procedure of the Unified Patent Court published

16th Draft of the Rules of Procedure of the Unified Patent Court published