The Unified Patent Court (UPC) has started running due to Austria completing the ratifications of the UPC Agreement (UPCA) and Protocol on the Provisional Application of the UPC Agreement (PPA). This allowed the UPC to start running, in a limited capacity, from 19 January 2022, with the start of the Provisional Application Period (PAP) allowed by the PPA.
There will be a wait before the UPC is fully functional, however, so patent owners have no immediate need to make changes to their patent strategy or portfolio management. While some steps will likely be needed during 2022, there is no need for rapid decisions to be made on opting-out European patents and applications from the UPC jurisdiction or making use of the Unitary Patent (UP) that will be established alongside the UPC to provide unitary patent protection in a number of European countries. There is also no danger of litigation before the UPC starting imminently.
As to the timings that can be expected, in short, the earliest the UPC and UP are likely to come into effect fully is towards the end of 2022. This is due to the time that will be taken to complete the combination of the PAP and the “sunrise” period, set out in Article 89(1) of the UPCA. The sunrise period, which will last around three months, is unlikely to completely overlap, if at all, with the PAP; and the UPC preparatory committee expect the PAP to last at least eight months so the necessary UPC institutions, committees and infrastructure can be set up and to allow for completion of judicial appointments to allow the UPC to function.
Bringing the UPC into existence has been a long process, but the PAP starting brings a fully functioning UPC much closer to reality. There could still be delays and difficulties though. While UK-based European Patent attorneys are expected to be able to represent patent owners before the UPC, withdrawal of the UK from the UPCA could slow progress. Progress towards a fully function UPC is therefore something the GJE team is watching carefully, and we will be advising clients on actions to take, what decisions are needed and how best to tailor the outcomes to their needs as the process evolves.
As the UPC moves towards fully opening, we will continue to provide updates on developments on our website, so please check regularly for the latest news. For more information on this topic or any of your other intellectual property needs, please find my contact details on my website profile here or contact us at gje@gje.com.
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