JUVE Patent brings you the latest news on the development of the UPC, as well as an overview of our previous coverage on the most important stages in the creation of the first European civil court.
March 2022
EPO organises two Unitary Patent IT workshops
The European Patent Office has announced that it is running two online workshops on the upcoming Unitary Patent. The UPC will offer Unitary Patents, which ensure patent holders receive patent protection in up to 25 EU member states by submitting a single request to the EPO. Once the EPO grants a patent, the patent holder can request unitary effect in the form of a Unitary Patent. The first session runs over two workshops, on 7 April from 16.00 -18.00 CET and 8 April from 9.00 – 11.00 CET. Attendees must register by 31 March.
UK patent attorneys can represent clients at UPC
The UPC Administrative Committee has now published the final version of the Rules on Representation regarding patent attorneys. It confirms that EPO-registered European patent attorneys living in an EPO member state can act on behalf of clients. Importantly, patent attorneys must also have a recognised litigation qualification from a listed institution. This means that UK patent attorneys will be able to represent clients at the UPC. The committee also announced a one-year grace period, from when the court launches, during which the required conditions can be met
Advisory Committee for selecting UPC judges now complete
On 22 February 2022, the Administrative Committee, which leads preparations for the Unified Patent Court, appointed its Advisory Committee. This is a subcommittee tasked with selecting UPC judges. The Advisory Committee includes numerous active and former judges with patent or IP experience, such as the French honorary judge Sylvie Mandel and former German Federal Court of Justice judge, Joachim Bornkamm. Both were previously involved in preparing the application and training process of future UPC judges. Thus, their appointment to the committee is no surprise.
The UPC Budget Committee has held its first meeting via hybrid format, in which it adopted its Rules of Procedure and set its legal framework. The Budget Committee meeting comes off the back of the UPC Administrative Committee’s inaugural meeting, which it held at the end of February 2022. In the Budget Committee meeting, Bruno Leboullenger was appointed as chairman, with Theis Bødker Jensen taking deputy chairman. According to the UPC, following this meeting, “Contracting member states taking part in the period of provisional application will be called to make their first contribution for the Court’s budget, under the provisions of the Financial Regulations of the Court.”
On 23 February 2022, the UPC announced that its Administrative Committee had held its inaugural meeting, via a hybrid mix of video and in-person representation, in Luxembourg. The country hosts the seat of the Court of Appeal and the Registry. The announcement comes after the entry into force of the UPC’s Provisional Application Phase (PAP), which commenced after Austria deposited its instrument of ratification early this year. Among other things, the committee appointed members of the UPC Advisory Committee, which is tasked with interviewing judicial UPC candidates. The committee also adopted the Rules of Procedure and important instruments of the Court’s secondary legislation. It also set out service and staff, and financial, regulations.
January 2022
EPO announces measures for early uptake of Unitary Patent
The European Patent Office intends to make two transitional measures available for European patent applications that have reached the final phase of the grant procedure, before the UPC comes into effect at the end of 2022. The measures will become accessible once Germany has deposited the instrument of ratification, which is likely to be in the next six to eight months. According to the EPO, “[the transitional measures] will be available for European patent applications for which a communication under Rule 71(3) EPC has been dispatched, i.e. which have reached the final phase of the grant proceedings”. The first measure is that the party may file an early request for the unitary patent to take effect. Thus, if the timing meets all above requirements, the EPO can register a patent as a Unitary Patent as soon as the UPC system begins. Secondly, parties may request a delayed grant, whereby a party receives a Rule 71(3) communication despite the text has not yet having been approved.
UPC preparation phase officially begins
On 19 January 2022, Austria deposited its instrument of ratification of the PAP with the European Council. As a result, the PAP will enter into force immediately and preparation for the Unified Patent Court can officially start. Austria was the 13th member state that still needed to deposit its instrument of ratification and trigger the PAP. At the beginning of December 2021, the Austrian parliament ratified the UPC protocol. At the time, it did not deposit the instrument with the European Council. However, from the 19 January, the UPC officially began its preparatory phase.
Austria is the 13th country to join the Protocol on the Provisional Application of the UPC Agreement. Today, the second chamber of the Austrian Parliament (Bundesrat) approved the Protocol. This completes the parliamentary process in Austria. The approval of the parties was unanimous. Now the UPC can start its preparatory phase. The next interesting decisions will be the selection of judges and where to locate the pharmaceuticals and chemicals parts of the Central Division following the UK’s departure from the project.
November 2021
Austria unanimously approves UPC protocol
The Austrian parliament has adopted the provisional protocol for UPC, with no votes against the motion. It is an important step for the application phase of the UPC to start. However, the next step is the second chamber of the Austrian parliament, the Bundesrat, also voting on the protocol.
October 2021
Preparatory Committee meeting suggests UPC could begin in 2021
On 27 October, the UPC Preparatory Committee held a meeting via hybrid format, which brought together associated delegates of the Unified Patent Court. A topic of discussion was the latest ratifications on the PAP by both Slovenia and Germany. The change means that now just one more country must sign the agreement for the court to begin preparations. According to the meeting report, “From the discussions it can be concluded that it is likely that the requirements will be met by the end of the year.” Chairperson Alexander Ramsay also presented a draft declaration on interpretation of Article 3 of the PAP Protocol. It confirmed that the protocol will enter into force once the required 13 member states become bound by said protocol. In doing so, this recognises that delegates should interpret Article 3 as mirroring Article 89 of the UPCA. The meeting also provided an overview of the several logistical hurdles the UPC Preparatory Committee is overcoming, such as IT systems and its draft budges, During the meeting, the UPC Protocol of Privileges and Communities also entered into force.
September 2021
Important step for UPC as Germany ratifies PAP
Only a few days after Slovenia, Germany has also completed the ratification of the protocol on the provisional agreement (PAP) of the Unified Patent Court. As announced by the Ministry of Justice in Berlin, Germany deposited the corresponding ratification instrument in Brussels. Now, twelve of the required 13 UPC states have ratified the PAP. Austria is expected to complete this step shortly. Here, however, the government must still pass the corresponding law through parliament. As soon as Austria ratifies the PAP, the UPC organising committee can begin important preparations. This will include things such as selection of judges, electing a president, and ensuring all IT infrastructure is properly secured.
Slovenia ratifies PAP on UPC Agreement
Slovenia has finally ratified the protocol on the provisional agreement (PAP) of the Unified Patent Court. This latest development means that just two more countries must ratify before the preparation phase can begin. According to sources, Slovenia ratified the PAP on the 16 September 2021, although it will only come into force once the Official Gazette (of the Republic of Slovenia) publishes it, likely to be in the coming days. Now just two more countries need to ratify before the court preparations can begin. This is likely to be Austria and Germany, the latter of which is moving towards depositing the ratification bill for the PAP in autumn following a tumultuous battle to get the UPC through its courts.
UPC requires one more signatory state
The UPC must soon overcome an important hurdle. Before the preparatory work for the new court, as set out in the protocol on the provisional application (PAP), can begin, 13 member states must ratify the PAP. But so far, according to JUVE Patent sources, only Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Luxembourg, the Netherlands and Sweden have signed the protocol. According to the German government, it plans to deposit the ratification bill for the PAP this autumn. Austria has signaled that it will also do so in the next two weeks. This means one more member state must sign the protocol before beginning preparations. Malta, Portugal and Slovenia are considered candidates for the missing ratification.
August 2021
German president signs ratification bill
German ratification of the UPC Agreement and the protocol on the provisional application (PAP) has overcome another important hurdle. The government published the new UPC law in the Federal Law Gazette. Previously, federal president Frank-Walter Steinmeier had signed the bill. Although long-awaited, this does not mean that the Unified Patent Court will start soon. UPC officials expect at least eight months of preparation before the court begins officially. Only when preparations are complete will Germany take the final step of its ratification and deposit the instrument of ratification with the European Council. Germany, France and Italy as well as ten other states must ratify the UPC Treaty in order to bring it into force. The UPC Agreement will enter into force on the first day of the fourth month following the deposit of Germany’s ratification bill.
July 2021
UPC dream closer after German court rejects constitutional complaints
Today, the German Constitutional Court has rejected two applications for an interim injunction against the German laws for the Unified Patent Court. According to the ruling, the complainants had not sufficiently substantiated the possibility of a violation of their fundamental rights. In all probability, the court will not hear the merits of the case. Now Germany, and two remaining member states, have a clear road ahead to ratify the UPC. Under the German system, the next step is for the federal president to sign the law. Speaking exclusively to JUVE Patent, Alexander Ramsay, head of the UPC Preparatory Committee, says, “Given today’s news, we expect Germany to ratify the protocol on provisional application in early autumn. The tasks that the council needs to handle during the provisional application phase should then take at least eight months to complete.” If everything goes according to plan, we could have a functioning UPC in late 2022 or possibly early 2023, he adds.
A spokesperson for German federal president Frank-Walter Steinmeier has told JUVE Patent that Steinmeier is currently waiting to execute the UPC law. The German Constitutional Court asked him to wait until it issues a ruling before executing the UPC law. In the meantime, JUVE Patent received more information about the people behind the second claim against UPC ratification. This time it is not a single person, but a group of claimants. The Constitutional Court confirmed that a private individual, a company and an association are behind the second claim. Düsseldorf lawyer Ingve Stjerna, the man behind the first constitutional objection, confirmed to JUVE Patent that he has filed another complaint against the UPC law. JUVE Patent is not yet aware how Stjerna has justified his second complaint. Stjerna has also applied for an interim injunction, which would prohibit the conclusion of the ratification procedure until the Federal Constitutional Court has ruled on the merits of the case. The identity of the second claimant is still unknown.
German UPC legislation challenged again by constitutional complaints
Last Friday, the Federal Constitutional Court again received two complaints against the German UPC legislation. The identity of the plaintiffs and the grounds for the complaints are currently unclear. It is also unclear whether German ratification of the Unified Patent Court will now be put on hold again. The Constitutional Court did not provide any further information except to confirm that it had received the complaints. Germany is the last country to ratify the UPC before the new court can start.
German Bundesrat approves UPC law, clearing way for UPC
Today, the German parliament has adopted the UPC legislation. In its final meeting of 2020, the German Bundesrat, the second chamber of the German parliament, voted unanimously in favour. Once again, all parliamentary hurdles in Germany are clear. New approval by the German parliament became necessary after the German Constitutional Court stopped the ratification of the German UPC laws in March. The Constitutional Court requires that both chambers of the parliament approve such international agreements with a two-thirds majority.
Yesterday evening, the German Bundestag (parliament) finally voted in favour of the UPC law. With 88% of the votes, parliament delivered the two-thirds cross-party majority required to pass the Act of Approval to the Agreement on a Unified Patent Court. In addition to governing parties CDU/CSU and SPD, members of the FDP, the Greens and the Left Party also voted in favour. Such a broad majority is important, because federal state representatives in the Bundesrat (the second chamber) must also approve the bill by a two-thirds majority. Different party coalitions govern the federal states. The vote in the Bundesrat is expected at the end of December. But some parties are still considering filing another constitutional claim against the UPC. Yesterday, Foundation for a Free Information Infrastructure (FFII) took a combative stance, calling on companies to join it in filing a constitutional claim.
The German Bundestag is to vote next week on the renewed attempt to enact the Unified Patent Court law. The Constitutional Court declared the first ratification invalid in spring and ruled a two-thirds majority was required. According to experts, the new draft is largely unchanged from the first ratification bill. Yesterday the German Bundesrat, the second chamber of parliament, dealt with the ratification law in a first sounding. It had no objections. As a rule, the federal government uses this first vote to test whether there are reservations in the Second Chamber against proposed legislation. The actual vote follows when the bill has passed the Bundestag. The Bundestag will now again deal with the UPC ratification in a first reading next week. Insiders say there will be no debate among the members of parliament. Usually the law is referred to the relevant committees for discussion. The Committee on Legal Affairs is the lead committee. The Culture Committee also plays a role. The second hearing in parliament is then decisive. JUVE Patent sources also say the London divisions will go temporarily to Paris and Munich.
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