Today, Germany has formally deposited its instrument of ratification of the UPC Agreement with the Council of the European Union, becoming the 17th member state to do so. The Unified Patent Court and the Unitary Patent can now officially begin on 1 June 2023, with parties also able to file opt-outs for their patents from 1 March.
17 February 2023 by Amy Sandys
Germany is the latest country to officially ratify the Unified Patent Court Agreement. On 1 February 2023, the UPC member states at the Administrative Committee meeting in Luxembourg confirmed that the UPC start date remains 1 June 2023, meaning Germany had to deposit its instrument of ratification in Brussels by 1 March at the latest.
In Germany, the cities of Düsseldorf, Hamburg, Mannheim and Munich host the first-instance chambers, with the latter also a central division location. The president of the Court of Appeal, which has its seat in Luxembourg, is German judge Klaus Grabinski.
Germany’s ascent to the UPC has been marred by various constitutional complaints. In July 2021, the country overcame the final hurdle after the German Constitutional Court rejected applications filed by plaintiffs for an interim injunction against the ratification of the Unified Patent Court (case IDs: 2 BvR 2216/20 and 2 BvR 2217/20). Previously, they had twice halted the court’s progression to the ratification stage.
Now, however, 17 member states have ratified the UPC Agreement. As well as Germany, this includes Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden. It is likely that other countries may join in the future – for example, in Ireland, the government has announced it will hold a referendum on UPC participation in 2023 or 2024 at the latest.
In a press release on the German Federal Ministry of Justice website today, Federal Minister of Justice Marco Buschmann explains, “Today takes innovation protection in Europe to a new level. From 1 June, there will be unitary patent protection in Europe, with disputes being decided in proceedings before the Unified Patent Court with immediate effect for all participating member states.
In this way, innovative companies will be able to effectively protect their inventions in the common market across borders, in keeping with the times. This strengthens the future viability and power of innovation in Germany and Europe.”
The European Patent Office has also issued an announcement regarding Germany’s depositing of the instrument of ratification. EPO President António Campinos says, “The deposit by Germany opens the door for a new era of IP protection in Europe. Under the Unitary Patent system, European businesses will be able to benefit from broader and more effective patent protection at lower costs, which is particularly important for smaller entities.
The start of the long-expected system is the result of close co-operation and constructive work of all partners and stakeholders of the European patent system.”
According to the EPO, European patent applicants are already showing an interest in the system. It reports that parties have filed over 2,200 requests for unitary effect and/or for delay of grant, since the EPO launched its transitional measures on 1 January.
The country’s acension to the PAP follows Austria, which deposited its instrument of ratification in January 2022. After this point, the UPC began its preparatory phase, which over the past year has included various IT test system phases, user authentication practice and work on the patent opt-out system. It has also focused on bolstering the UPC personnel structure.
Recently, for example, the court announced former Administrative Committee chairman Alexander Ramsay as its first registrar.
However, perhaps most important has been the selection of legally and technically qualified judges, who will oversee the court’s central and local divison. Among the names are Ulrike Voß and Matthias Zigann from Germany, Rian Kalden and Edger Brinkman from the Netherlands, and Florence Butin and Mélanie Bessaud from France.
Furthermore, Klaus Grabinski will lead the court as president of the Court of Appeal, alongside Florence Butin as president of the Court of First Instance. Two Court of Appeal judges, Rian Kalden and Ingeborg Simonsson, and three judges from the Court of First Instance, Camille Lignieres, Ronny Thomas and Peter Tochtermann complete the Presidium.
Additionally, the committee has elected Rian Kalden as presiding judge of the second panel of the Court of Appeal.
In January 2023, the first advanced training for selected UPC judges took place in Budapest. The Administrative Committee is yet to announce who it has selected for the three remaining unfilled positions, although it has removed its judicial vacancies from the UPC website.
The next question is whether the vacant third central division will go to Milan, since it will not be The Hague, in the Netherlands. Some officials have posited temporary solutions, such as splitting the cases between the two central divisions in Paris and Munich.
Several well-informed sources have reported that the states gave the go-ahead to Milan, which is to become effective at the UPC start date. Milan is currently the only contender to succeed the former London divisions and, according to JUVE Patent information, has the support of Germany, among others.