Seriously – Could the Unitary Patent and Unified Patent Court system still start this year?

“A graceful start”

According to reported comments from a press conference after the meeting of the EU Competitiveness Council, 29 and 30 May 2017 in Brussels, the European Commissioner, Elzbieta Bienkowska, has indicated that it is still possible Unitary Patent system could launch this year IF the Provisional Application period (PAP) can still start before the Summer break.

The Commissioner, Elzbieta Bienkowska acknowledged that the target date of May 29th which was set for the start of the provisional application period (PAP), the day of the European Council meeting – has turned out to be too optimistic.  Agreement of three member states on the Protocol on Provisional Application (PPA) is still needed before the Provisional Application period can start. According to Elizbieta Bienkowska, if three member states can be found in the short term to support the PPA, the UPC may still open its doors as planned in December. I personally find it entirely suprising that this time schedule is still being flagged as a possibility

What can we apply for during the “Provisional Application period”?

Actually, the name is somewhat misleading as we cannot apply for any patent under the system during the Provisional Application period. However, to have a functioning system ready to operate when the Unified Patent system starts, there are some practical matters to be attended to, including the final stages of recruitment and training of the Judges and the testing of the IT system including the Case Management System (CMS) that crucially, must be able to cope with the volume of opt-outs expecting to be filed during the “Sunrise period” in the 3 month lead up period to the commencement of the new system.  So, to allow for these practical matters to be ready, there is the Protocol to the UPCA on Provisional Application (PPA) which provides for a Provisional Application period meaning that these practicalities can be implemented during this time period.

Also, the Provisional Application period includes the 3 month “Sunrise period” during which it will be possible to file an opt-out of patents and patent applications from the jurisdiction of the UPC. For more information on opt-outs, please see our earlier blog.

What is the current status on ratification of the Unified Patent Court (UPC) Agreement?

At the present time, of the 25 member states of the EU who will participate in the Unified Patent Court (UPC), only 12 have made the necessary preparations to ratify the Unified Patent Court Agreement (UPCA), including France. The ratifying states MUST include France, Germany and the UK. Both the UK and Germany have indicated that they will ratify but with the UK election tomorrow, June 8th; as well as the German elections which take place later this year, the timeline is likely to be a fluid one! Nevertheless, as soon as the UK and Germany actually ratify the UPC, the new system will be all set to open as an option for businesses.

The PPA enters into force (Article 3 PPA) the day after 13 UPC member states, including France, Germany and the UK, have 1) ratified or received parliamentary approval to ratify the UPCA and 2) approved or declared to be bound by the PPA.

According to a Bristows report, Belgium, Denmark, France, Finland, Italy, Luxembourg, the Netherlands and Sweden meet these requirements. Also, ‘Germany and the UK have each consented to the Protocol. (…) it appears that other countries (such as Greece, Estonia, Lithuania and Slovenia) may be in a position to enable the Provisional Application Phase to start before the summer break.’

So, further ratifications are needed to get the Provisional Application Phase started, in addition to  those needed for the UPCA itself.

With the UK general election being held tomorrow, June 8th, we will have to await the new Government to be in place before any further progress can be made. Since the announcement of an early general election in the UK, it has been widely considered inevitable that the Unitary Patent and Unified Patent Court is highly unlikely to start until into late Spring 2018.

Marie Walsh,

HMC

Views expressed are the author’s own.

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