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.
August 2022
UPC introduces strong authentication scheme for CMS
The Unified Patent Court has announced further progress in the implementation of its brand-new case management system (CMS), due to be phased in next month. A strong authentication scheme has been introduced to replace the current account and password system, with the aim of keeping the system secure. In future, users will require an ‘electronic IDentification certificate’ that complies with EU regulations in order to access the CMS. Furthermore, users will be required to use a qualified electronic signature to electronically sign legal documents. According to the UPC, a physical device from an authorised provider will be needed to acquire these. This is expected to be rolled out in mid- to late September.
According to JUVE Patent information, the UPC Administrative Committee has begun the process of informing judicial candidates of their success. Several candidates have received letters confirming their ascension to the court's judicial system. Unsuccessful candidates are also being informed. A source has said that the letters were sent out last Friday, although JUVE Patent cannot confirm the number of candidates contacted. The committee will make the list public once all candidates have accepted and undergone an obligatory medical.
German Constitutional Court formally ends UPC case
The Federal Constitutional Court has now formally dismissed the second constitutional complaint lodged by Düsseldorf lawyer Björn Ingve Stjerna and two unknown companies. The court announced the development in the two main trials regarding the complaint. The move is more of a formality, as the German Constitutional Court already rejected applications filed by the plaintiffs for an interim injunction against the ratification of the Unified Patent Court in July 2021 (case IDs: 2 BvR 2216/20 and 2 BvR 2217/20). The dismissal a year ago cleared the way for Germany's ratification of the UPC laws and the resuming of preparations for the court's launch. The Federal Constitutional Court's reasoning states - unsurprisingly - that the second constitutional complaint was unsuccessful for the same reasons as in the urgent decision. On the other hand, the first constitutional complaint filed by Stjerna was successful and blocked German ratification in 2020.
Milan now top candidate for UPC central division as The Hague drops out
The Hague has officially dropped out of the race to host the former London UPC central division, leaving Milan as the only contender. A spokesperson for the Dutch Ministry of Economic Affairs and Climate Policy told Managing IP that the government had considered The Hague as a potential candidate for the UPC’s central division but ultimately chose not to pursue the bid.
In a report authored by the city‘s local government and the Dutch branch of the International Association for the Protection of Intellectual Property, it was estimated that the central division seat would bring €191 million into The Hague each year. This now leaves Milan as the only frontrunner after the Italian government originally fielded the city for the central division back in 2020. The division will focus on pharmaceutical litigation. Meanwhile, Ljubljana and Lisbon will host the UPC’s Patent Mediation and Arbitration centre.
July 2022
UPC website publishes amended Rules of Procedure
Following its 8 July meeting in Luxembourg, the Administrative Committee of the UPC has published its amended Rules of Procedure. While the committee proposed several updates to the overall document, perhaps most striking is its changes to the rules around opting out for patent proprietors and applicants. For example, it has included a totally new rule in Rule 5 A, entitled ‘Application to remove an unauthorised application to opt out or unauthorised withdrawal of an opt-out.’ In the interest of transparency, the document also provides explanatory notes on the developments, for example regarding 5 A, ‘This new rule determines how the Court has to deal with an unauthorized application to opt out or an unauthorized withdrawal of an opt-out (sic).’ The amended rules make concessions towards the much-debated issue of transparency and public access to judgments, as well as to the application of video conferencing in UPC proceedings. Much is also concerned with procedural issues, such as compliance with certain regulations laid out under the UPCA. The website also contains other documents from the 8 July meeting, for example amendments to service and staff regulations, decisions for the set-up of local and regional divisions, and information on fees.
UPC Administrative Committee publishes outcomes of 8 July meeting
The UPC’s Administrative Committee has today published a general outline of the outcome of its meeting on 8 July 2022, which much of the patent community is awaiting with interest. A statement on the UPC website indicates that, among its decisions, the committee confirmed the setting-up of local and regional divisions of the Court of First Instance; adopted the Court’s Rules of Procedure and its Table of Fees, as well as its regulations on duty travel; adopted a medical and social security plan, pension scheme and internal tax of the UPC; and was presented with a recommended list of UPC judicial candidates. It confirms the Administrative Committee will decide the latter before the official summer break in August. According to the website, following efficient adoption of the measures by the UPC member states, it is very likely the UPC will start in early 2023.
Ibec urges Irish government to confirm UPC ratification timetable
The group representing Irish business, Ibec, has called on Ireland’s government to urgently set out a timetable for Ireland’s ratification of the Unified Patent Court Agreement. Appearing before the Joint Oireachtas Committee on Business, Enterprise and Innovation, Ibec said that “a failure to urgently act risks seeing Ireland miss out substantial opportunities for economic growth.” Last month, Ireland’s government committed to holding a referendum on participation in the UPC, although this will not take place before 2023 or 2024 at the latest. In a statement to the committee, Ibec Corporate IP Group chair Naoise Gaffney said, “An attractive and timely-established Local Division in Dublin will support the further expansion of the patent-intensive sectors across the country… This is expected to contribute at least €415m or 0.13% in GDP growth per annum. It could rise to as much as €1.663bn or 0.5% in GDP growth. There will also be increased expenditure and employment in legal, professional, and other technical advisory services.”
Administrative Committee confirms final Rules of Procedure
Today, the UPC Administrative Council met to finalise the court’s Rules of Procedure, taking into account amendments suggested by the European Commission. According to JUVE Patent sources, the committee approved the amended rules, which will be implemented from 1 September 2022. On 8 July, the committee is also deliberating on which judges will preside over cases at the Unified Patent Court. However, this information is not likely to be confirmed until August.
June 2022
Ireland’s government commits to UPC referendum
In an announcement published by the country’s Department of Enterprise, Trade and Employment, the government of Ireland has reaffirmed its commitment to holding a public referendum on participation in the Unified Patent Court. If it goes ahead, which is not likely to be until 2023 or 2024 at the latest, it will allow the UPC to create a local division in the Irish capital of Dublin.
From 8 July, the UPC Administrative Committee will begin deciding on the supranational court’s 90-strong judicial bench. Following calls in 2016 and 2019 for legal and technical judges, the Advisory Committee received over 1000 applications, eventually inviting 170 to interview with the view to appoint 90. The committee breaks this down into five full-time and 35 part-time legally-qualified judges, as well as 50 part-time technically-qualified judges. For each position, the Advisory Committee made two recommendations.
The UPC Advisory Committee has begun the interview process for its judicial bench, which according to a press release will continue until the end of May. Once the interviews have been conducted, the committee will provide its recommendations to the Administrative Committee. In the current timeline, the latter committee will appoint the UPC judges before the summer break begins in July. The committee is also working on the procurement of a medical and social security plan, while also finalising the UPC IT system – long a point of discussion for its potential users. Importantly, this also includes a case management system. According to the Advisory Committee, it is also finalising corporate functions and developing a new website. It is expected that the court will begin operation in late 2022 or early 2023.
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.
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