UPC – Pushing Forward and Back

The European Patent Office (EPO) is, at the time of publication, predicting the Unified Patent Court (UPC) and Unitary Patent (UP) system will come into force at the beginning of 2022.  With a year left before the start date anticipated by the EPO, we have reviewed the current state of the UPC and UP to see if, this time, the start date will stay put, or will be pushed back again.

Progress towards the UPC entering into force has not been smooth.  The last time there was momentum behind this was in 2017.  With this momentum ebbing away, in 2019, it looked like it the final push forward would happen.  The required number of ratifications including the key French and UK ratifications had been met, and the only thing outstanding was the final key ratification by Germany.

The German ratification did not, however, go as planned.  The Bundestag completed the necessary steps to ratify the UPC Agreement, the law governing the UPC, and all that remained was for the German President to sign the relevant legislation.  This was stopped by a constitutional challenge successfully voiding the ratification (as we reported here).  Swiftly following this there was confirmation Germany would press ahead with re-ratifying the UPC Agreement.  In mid-December 2020 the German parliament again adopted the necessary legislation for the ratification.  History was then repeated, as, within days, further constitutional challenges were lodged.  This means the German ratification has again been thrown into doubt.

The delay on the German ratification is not the only wrinkle that may push back the date of entry into force of the UPC.  The process of the UK leaving the EU is now complete, but this process led the UK Government to withdraw the UK ratification in mid-2020.  This leaves doubt over whether the ratifications required by the UPC Agreement for the Court to enter into force can be achieved.  Additionally, the division of the Court required by the UPC Agreement to be in London is now outside the EU and not in a state participating in the UPC.  The absence of the UK ratification, the location of the London court division and how to still allow the UPC to enter into force will need to be worked out before real progress can be made.

For more information on the topic covered in the article or any of your other intellectual property needs, contact Alistair Holzhauer-Barrie via alistair.holzhauer-barrie@gje.com.