2021-09-30

Unitary patent package – almost there?

The German Federal Government deposited on 27 September Germany’s instrument of ratification of the Protocol on the Provisional Application (PPA) of the Unified Patent Court Agreement (UPCA).

This is a decisive step on the way to the establishment of the Unitary Patent package, which consists of the new European unitary patent (granted by the EPO) and the setting up of the Unified Patent Court.

The provisional application is required to establish the legal capacity and organizational capability of the UPC. During the PAP phase, the governing bodies of the Court will be assembled, budget and IT systems as well as finalization of the recruitment of the judges of the Court. The Preparatory Committee foresees that approximately eight months will be required to conclude all the work that needs to be done during the PAP.

Germany’s ratification of the PPA comes after several years of doubt, during the examination of the Agreement by the German Federal Constitutional Court (FCC). Following the decision of the FCC published in July this year the German law for the ratification of the UPCA and its Protocols was signed by the President and published in August allowing Germany now to proceed with ratification.

Germany’s ratification enables the PPA to come into force (and therefore the provisional application period to start) as soon as two more countries ratify the PPA or otherwise consent to be bound by the provisional application of certain UPCA provisions.

One of those countries is very likely to be Slovenia (which is hosting in Ljubljana one of the seats of the UPC Mediation and Arbitration Centre). Slovenia’s legislation ratifying the PPA came into force on 24 September 2021 when it was published in Slovenia’s Official Gazette although the Council of the EU has not yet recorded the deposit of the instrument of ratification.

Austria is also expected to ratify the PPA shortly.

Further signs of activity on this topic:

–       An overview of the state of play for entry into effect of the unitary patent package was due to be addressed during the Competitiveness council on 29 September 2021;

–       The Select Committee (dealing with the Unitary  patent) of the EPO Administrative Council will meet on 14 October 2021.

Alexander Ramsay, Chair of the UPC, estimates that the UPC will start operations around mid-2022.

Philippe Ocvirk