Louise AMAR, auteur sur UPC Blog by amar goussu staub

6 April 202026 July 2022

The UPC is dead (thanks to Germany’s constit. court), long live the UPC!

The German constitutional decision:

In March 2017 a lawyer asked Germany’s constitutional court to decide whether the German Parliament had passed the legislation ratifying the UPC Agreement with the appropriate quorum .

In March of this year the court, finally, ruled that the Bundestag should have passed the ratification bill with a two-thirds majority of all the German MPs. This quorum is in fact required whenever a piece of legislation substantially amends the German constitution. Instead, only 35 out of 709 MPs approved it.

The German constitutional court however considered that the UPC Agreement allowed the transfer of sovereign rights to a supranational court, the UPC. This therefore amounted to a constitutional amendment and required the legislation enabling the ratification of the UPC Agreement to be passed by the German parliament with a two-third majority of MPs.

This means that Germany must now pass, with the specified quorum, a new law allowing the ratification of the UPC Agreement. With the current worldwide health crisis this may not however be a priority for the German government.

So what now?

Germany’s ratification is necessary for the UPC to go ahead. According to JUVE Patents, the German Federal justice minister Christine Lambrecht announced soon after the German constitutional court published its decision that she “will continue (her) efforts to ensure that we can provide European innovative industry with a unitary European patent with a European Patent Court. The Federal Government will carefully evaluate the decision of the Federal Constitutional Court and examine possibilities to remedy the identified lack of form before the end of this legislative period.”

Although the direction that will take the UPC is uncertain it seems that Germany’s political will still exists at the moment. However, the longer the ratification procees takes the harder it will be for the Court to overcome the rise of euro-scepticism and the growing reluctance of some member states to integrate further legal and economic areas.

4 March 202026 July 2022

The UK will not take part in the UPC

Brexit deal and UK participation to the UPC

The suspens is over:

The UK will not be a member of the UPC and will not deliver Unitary Patents.

The UK’s negotiating objectives, i.e its overall goals for the next phase of Brexit, published last week in fact declares:

“It is a vision of a relationship based on friendly cooperation between sovereign equals, with both parties respecting one another’s legal autonomy and right to manage their own resources as they see fit. Whatever happens, the Government will not negotiate any arrangement in which the UK does not have control of its own laws and political life. That means that we will not agree to any obligations for our laws to be aligned with the EU’s, or for the EU’s institutions, including the Court of Justice, to have any jurisdiction in the UK.“

Moreover, as reported by JUVE Patent « A press office for the Cabinet Office confirmed (…) « I can confirm that the UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.”

Surprise..!

Although this does not come entirely as a surprise, the UK government had nonetheless sent encouraging messages regarding the country’s participation to the UPC system after Brexit.

Its successive IP ministers had issued statements reiterating their commitment to the court; surveys had showed an overwhelming support across all industries for the UK’s participation; and the UPC’s Central division in London had already been arranged. Last but not least, the UK gouvernement had ratified in 2018 the UPC Agreement as well as the Protocol on Privileges and Immunities. These were interpreted as strong signals of the UK’s continuing participation to the UPC.

On the other hand, the raison d’être of Brexit seemed to go directly against Opinion 1/09 of the CJEU, which makes clear that the UPC Agreement requires member states to respect the primacy of EU law as well as the jurisdiction of the CJEU.

Politics thus prevailed.

Reacting to the news Alexander Ramsay, head of the UPC Preparatory Committee declared « (e)ver since the Brexit referendum in 2016 we were aware that something like this could happen, so the decision of the UK government does not come as a total surprise.”

What about the UK’s ratification of the UPC Agreement?

The next step for the UK government is now to seek to rescind its ratification of the Unified Patent Court Agreement. However, as Ramsay explains, “(t)here are no provisions in the UPC agreement for the case of a member state that has ratified the agreement to drop out. It’s therefore very likely that the UK will have to launch a procedure under the Vienna Convention on the law of treaties.”

It will be interesting to see how the UK government intends to proceed.

What is the UPC next challenge?

The next challenge for the UPC is to move forward without the UK.

To be continued…

4 December 20192 December 2019

A new Christmas tale by the German constitutional court?

In Spring 2017 the German constitutional court was asked to assess the constitutionality of the German legislation allowing the country’s ratification of the UPCA. The court backlog has so far meant that the decision is still pending.

However, on 20th November, Peter Huber, the judge rapporteur in charge of the challenge before the German constitutional court declared that the Court will hand its decision in early 2020.

In his interview with Managing IP, Huber stated that it was his “intention to issue a decision on the complaint made against the legislation enabling Germany to ratify the UPC Agreement early next year”.

The final time frame however still depends on “the time it takes for him (the judge rapporteur) and other judges at the Constitutional Court to deliberate on and amend the judgement“.

Although this declaration is not an official communication from the German constitutional court itself, whose spokesman did not actually confirm the content of the interview, it still gives hope as to the coming into action of the UPC.

Last week, Alexander Ramsay -Head of the UPC Preparatory Committee- reacted to this declaration and said that the UPC could be operational by early 2021. This assumes that Germany ratifies the UPCA very soon after its constitutional court’s decision. The UPC will then need 8 months from Germany’s ratification to be ready.

Indeed once this ratification takes place the provisional phase can start, and in turn the three governing bodies (the administrative, budgetary and advisory committees) of the court can be set up. The end of the provisional government period will then be decided by the member states.

However, Alexander Ramsay was keen to emphasise that the UPC is putting the extra time, given by the German constitutional challenge, to good use.

The IT system for example is now ready and has benefited from the ratification delay with IT teams checking that the “IT system can actually work together“. The Registry Rules are also tested to check that they are functional. Similarly the recruitment of judges is under way with around 1000 candidates to choose from for around 50 qualified judges positions and 50 legally qualified judges positions.

All is needed now is for the German constitutional court to issue its decision…

2 December 20192 December 2019

The EU Parliament publishes a in-depth analysis on the UPC and Brexit

In November the EU parliament published “an in-depth analysis” on the UPC and Brexit as requested by its Committee on Legal Affairs.

The paper “tries to clarify the question how Brexit may affect the entry into force of the new European Parent with Unitary effect (EPUE), especially, if the Unified Patent Court Agreement (UPCA) can enter into force, even in case the UK has withdrawn from the EU. What would be the necessary steps to be taken by the EU in order to ensure the functioning of the future European Unitary patent and in case the UPC Agreement would have to be revised because of Brexit.”

What clarifications does the EU Parliament Committee on Legal Affairs bring about Brexit and the UPC?

The EU Parliament’s analysis first summarises the history of the UPC and unitary patent and explains the content of the Unitary patent protection and the Language regime regulations.

The Policy Department for Citizens’ rights and Constitutional Affairs then looks specifically at whether “the UK can become and stay a member of the UPC” by confronting the positions of the UK government, European Council, EU Parliament and the CJEU.

It condenses them as follows:

The UK government:

“It seems that the government is aware that if the UK leaves the EU without a deal this might have implications on the UK patent system and supplementary protection certificate, the UPC and the EPUE and correspondence addresses and confidentiality for UK patents.”

Thus “If the UPC is ratified and comes into force, there will be actions that UK and EU businesses, organizations and individuals may need to consider. The UK will explore whether it would be possible to remain within the UPC unitary patent systems in a ‘no deal’ scenario. In the event that the UPC and EPUE come into force and the UK needs to withdraw from one or both systems, businesses will not be able to use the Unified Patent Court and unitary patent to protect their inventions within the UK.”

The European Council:

The position of the European Council and the contracting Member States of the UPCA on the possibility to cooperate with the UK in the framework of the UPCA is not known.

This is despite the fact that: “(a)lthough the draft withdrawal agreement of November 2018 is silent about Patents, both parties have agreed, together with the draft withdrawal agreement, a (non-binding) political declaration setting out the framework for the future relationship between the European Union and the United Kingdom.”

Point 44 of this agreement in fact specifically provides that both sides “should provide for the protection and enforcement of intellectual property rights to stimulate innovation, creativity and economic activity, going beyond the standards of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights and the World Intellectual Property Organisation conventions where relevant.“

Moreover, in point 47 of this agreement the parties agreed “that the Parties should establish a mechanism for cooperation and exchange of information on intellectual property issues of mutual interest, such as respective approaches and processes regarding trademarks, designs and patents.”

The European Parliament:

The EU Parliament identifies the following issues to the participation of the UK to the UPC after Brexit:

“– the fact that the UK is not a member of the EU;

– the underlying EU intellectual property law, constantly changing

– the role of the CJEU as last instance for litigations.”

Indeed, “from the point of view of the legislator (EP) it (the UPC) is a patent court designed for EU member states, to create and rule on patents in EU member states, which comes under CJEU jurisdiction on questions of EU law.”

Furthermore, “It is clear that the UPCA will apply and interpret EU patent law in its up to date version in force, not only in the version of the day when the UK has left the EU. ”

These questions are especially relevant in the context of Brexit as “the UK has to ask itself (…): Can we participate in a UPC which relies on and refers to the CJEU? One of the main reasons , if not the primordial reason for Brexit was that the UK wanted to take back control of laws and bring an end to the jurisdiction of the CJEU in Britain and that those laws will be interpreted by judges not in Luxembourg”.

The Court of Justice of the European Union:

In 2009 the CJEU was asked by the European Council to rule on whether non- EU member states could take part in the UPC. Indeed, at the time, the version of the draft UPCA allowed non EU member states to be a party to the UPCA.

The CJEU however considered this initial version of the UPCA in breach of EU law because the agreement as it was drafted at the time conferred “on an international court which is outside the institutional and judicial framework of the European Union an exclusive jurisdiction to hear … actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field.”

This would then “deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European”

Thus although the CJEU held that the then draft version of the UPCA was in violation of EU law it did not expressly say that non EU member states could not take part in the UPC.

Member states nonetheless amended the final draft of the UPCA, which now provides explicitly “this Agreement should be open to accession by any Member State of the European Union; Member States which have decided not to participate in the enhanced cooperation in the area of the creation of unitary patent protection may participate in this Agreement in respect of European patents granted for their respective territory.”

This was despite the fact that EU member states were actually in favour of the UPC being open to non EU members. Indeed “(w)hen the Council put the question to the CJEU: “Is the envisaged agreement creating a Unified Patent Litigation System compatible with the provisions of the Treaty establishing the European Community?” most member states were in favour: The UK, during the hearing procedure before the CJEU, considered that the essential character of the CJEU’s powers was preserved within the litigation system provided for by the envisaged agreement (to be regarded as a mixed agreement), “since neither the exclusive jurisdiction of the Court nor the binding effect of its decisions are called into question”. The UK therefore pleaded that the draft agreement was compatible with the Treaties.”

So what is the EU Parliament Committee on Legal Affairs’ conclusion as to the UK’s participation to the UPC after Brexit?

Although not clear-cut the EU Parliament Committee on Legal Affairs’ conclusion does not rule out the UK’s participation to the UPC after Brexit as “it seems not per se legally impossible that the UK can stay within the UPCA, even when not an EU Member State.

The Committee is also keen to highlight that even if the UK were to withdraw from the UPC “this would not hinder the UPCA coming into force.” Indeed “(t)he three Member States with the most of patents in force (UK excluded) are Germany, France and the Netherlands.” Moreover “(i)t is also understood that a solution for the London section has to be found in case of the UK has left the UPCA – before or after its entry into force. In case that the UK would wish to stay inside the UPCA, this pledge would have to be respected by EU Member States.”

What was the UPC Preparatory Committee’s response?

Asked about the conclusion of this analysis, Alexander Ramsay -Head of the UPC Preparatory Committee- highlights the fact that, although not mentioned by the EU Parliament Legal Affairs Committee “there is a simplified mechanism in the Agreement for consensus amendments”. Such amendment could then allow the UK to remain a member of the UPC.

Ramsay also points out that the European industry has expressed its preference for a UPC that would be inclusive of the UK.

He thus concludes by saying that although the UK‘s participation to the UPC is a political decision which depends on negotiations between EU member states and the UK, he still believes that the UK will be a part of it.

6 September 20196 September 2019

Brexit and the German constitutional challenge

Brexit is getting closer everyday and its consequences for the UPC have become tangible: it is now unlikely that the UK will still be a member of the UPC after 31st October 2019. It also is unlikely that the UK will become a member state of the UPC before Brexit; Germany’s ratification before the end of next month being highly improbable.

So what has been happening in the UK with regard to the UPC?

In August, Jo Johnson was reappointed as IP Minister. He had already held the position from July 2016 to January 2018. It is under his tenure that the UK ratified the UPC Agreement and declared it intended to participate to the UPC after Brexit.

Some had interpreted this re-appointment as a strong signal of the government support for the UK’s involment in the UPC. However Jo Johnson resigned as MP and minister on 05th September, citing “unresolvable tension between family loyalty and the national interest’.

Thus, now that the UK Government seems to be aiming for a no-deal Brexit the possibility of the UK remaining a member of the UPC is very slim. Indeed, had the UK agreed to the EU withdrawal agreement, the UK and the EU would have had until 31 december 2020 to negotiate the UK’s continued participation to the UPC.

Hence, although the UKIPO declared the following to Managing IP:

it is difficult to see how the UK government could, after Brexit, justify to be subjected to the decisions of the Court of Justice of the European Union.

Moreover, commentators agree on the fact that there is still a strong incentive for the UPC to exist even without the UK’s participation. The UPC member states will thus probably push for its entry into force despite the fact that the UK is not participating.

Managing IP has actually launched this week a survey for in-houses “to find out whether a European harmonised patent system would still be attractive to patent-focused businesses without the UK as a participant” . It asks 2 questions:

“1. Would the UPC and unitary patent system still be attractive to you and your business without the UK as a participant? 2. Why do you think the UPC and unitary patent project is still attractive OR unattractive without the UK? “

And what about Germany?

Despite passing the legislation enabling the ratification of the UPC Agreement, Germany has yet to ratify it. The ratification is stalled by the constitutional challenge of the very legislation allowing the ratification of the UPC Agreement . The German constitutional court has however schedulled the challenge for a hearing this year.

In August, the German Federal Government has had also to answer questions from the German Free Democratic Party about the UPC. The questions concerned the impact of Brexit and Germany’s annual budget for the UPC. The German Federal Government was asked about the money it has spent to contribute to support the development of the UPC. With regard to the impact of Brexit, the German Federal Government responded the following:

“The issue of the withdrawal of the United Kingdom from the European Union (so-called Brexit) and its implications for European patent reform play an important role in the further implementation process of the Unified Patent Court. The real and legal implications of withdrawing from the Treaty must be examined and agreed at European level. This opinion is currently not finalized, not least because significant factors of the expected exit are not yet known.” (p.2 response to questions 1 & 2, )

Regarding future budgets, the Federal Government confirmed its ongoing commitment to the creation of a unified patent system in Europe. It declared:

“The Federal Government has always insisted on the creation of a unified patent system in Europe and thus also on the Unified Patent Court. This commitment will continue. The Federal Government therefore takes the necessary budgetary measures to fulfill the financial obligations arising from ratification” (p.4, response to questions 7 & 8)

The UPC into action before Brexit no longer possible?

The coming into existence of the UPC before Brexit does not seem probable. It is in fact, on the one hand, unlikely the German constitutional court decide upon the constitutionality of the ratification legislation before Brexit and, on the other hand, one can doubt that Germany would sign the UPC Agreement without knowing the overall impact of Brexit on the UPC.

The coming into action of the UPC will thus depend on the Member states’ ability to commit, notably financially, to the project once the UK will have left the EU. Indeed, the UPC Agreement does not require the UK to be a participating member state for it to come into force; but only provides that “this Agreement should enter into force on 1 January 2014 or on the first day of the fourth month after the 13th deposit, provided that the Contracting Member States that will have deposited their instruments of ratification or accession include the three States in which the highest number of European patents was in force in the year preceding the year in which the signature of the Agreement takes place, or on the first day of the fourth month after the date of entry into force of the amendments to Regulation (EU) No 1215/20121 concerning its relationship with this Agreement, whichever is the latest”.

8 July 20196 September 2019

The Italian government to ask for London UPC Central Division to be transferred to Milan?

Italian Foreign Affairs confirm Milan candidacy for UPC Central Division

The Italian Foreign Ministry confirmed that the city of Milan and the Lombardy region wish to host the UPC Central Division for human necessities, chemistry and metallurgy that is -for now- located in London, were the UK not be a participating member after Brexit.

The Italian Foreign Minister indicates that the city of Milan and the Lombardy region will thus to that effect submit their candidacy to the Italian government.

13 June 20196 September 2019

Preparatory Committee re-opens judges recruitment campaign

The Unified Patent Court published on 3rd June has announced that “the Preparatory Committee has agreed to re-open recruitment for judicial positions to new applications“. This will be the second recruitment campaign after the first in 2016.

The 2019 campaign is a “‘top-up’ exercise to complement the recruitment held three years ago” . As in 2016, this campaign aims at finding legally and technically qualified judges.

This new campaign should also” allow those that were not eligible, or decided not to apply three years ago, to submit an application provided they now meet the correct criteria. “

The job adverts for legally and technically qualified judges read :

“Legally qualified judges to serve at the Court of First Instance or at the Court of Appeal – several full-time and part-time posts –
– 6-year terms –

The successful candidates will be part of a new supranational court and contribute decisively by their judicial work and highest standards of competence to ensure that the UPC becomes a widely respected forum for settling patent disputes in the Contracting Member States of the European Union.

Candidates shall be nationals of one of the Member States having signed the UPCA. To be appointed, the successful candidates shall be nationals of Member States having ratified the UPCA. They shall have a good command of at least one official language of the European Patent Office (English, French or German), shall ensure the highest standards of competence and shall have proven experience in the field of patent litigation. Specific training in patent litigation according to Art. 2(3) of UPCA Statute will also be accepted.

Candidates shall possess the qualifications required for appointment to judicial offices in the Member State of which they are nationals. Reference is made to the official information provided in the Information on the selection process of UPC judges.

In addition, the ideal candidate will have:
–      extensive experience in the field of patent litigation,
–      initiative, high degree of commitment and self-motivation and a proactive approach to ensure efficiency and high quality of proceedings at the UPC,
–      the ability to work both independently and as part of a judicial panel or specialist team, and to meet tight deadlines,
–      well-developed written, verbal and interpersonal communication skills,
–      strong analytical skills,
–      the capacity to work in a multinational and multilingual environment.

Salary and benefits: The UPC offers attractive salaries, allowances, social benefits and a pension scheme comparable to that offered at other intarnational courts. The net monthly salary for this vacancy is of EUR 11 000 for full-time judges at the Court of First Instance and of 12 000 for full-time judges at the Court of Appeal.

Technically qualified judges to serve at the Court of First Instance and at the Court of Appeal – several part-time posts –
– 6-year terms –

Qualifications: Candidates shall be nationals of one of the Member States having signed the UPCA. To be appointed, the successful candidates shall be nationals of Member States having ratified the UPCA. They shall have a good command of at least one official language of the European Patent Office (English, French or German), shall ensure the highest standards of competence and shall have proven experience in the field of patent litigation.

Candidates shall have

a university degree,
proven expertise in a field of technology and
proven knowledge of civil law and procedure relevant in patent litigation.

Specific training in patent litigation according to art 2(3) of UPCA Statute will also be accepted. In addition, the ideal candidate will have

extensive experience in the field of patent litigation
initiative, high degree of commitment and self-motivation and a proactive approach to ensure efficiency and high quality of proceedings at the UPC,
the ability to work both independently and as part of a judicial panel or specialist team, and to meet tight deadlines,
well-developed written, verbal and interpersonal communication skills,
strong analytical skills,
the capacity to work in a multinational and multilingual environment.

Salary and benefits: The UPC offers attractive salaries allowances, social benefits and a pension scheme comparable to that offered at other international courts. The net monthly salary for this vacancy is of EUR 11 000 for Court of First Instance judges (full-time equivalent). ”

As for the process and timeline the ad specifies that “the successful candidates will be selected on the basis of qualifications and relevant experience, supplemented by interviews. Appointments will be made by the UPC’s Administrative Committee. ” Both dealines for application are midnight CET 29.07.2019

1 June 20196 September 2019

Should I stay or should I go? Strategic considerations for the opt-out

As the UPC will start its operations in the near future, European patent owners must determine their opt-out strategy. Indeed, deciding whether to opt out a European patent is a decision which requires analysing the scope of competence of the UPC and the scope of enforcement of its decisions, along with litigation costs and case law.

§. The UPC scope of competence

A non-opted out European patent will benefit from the scope of competence of the UPC. In fact, the UPC will be able to hear:

Revocation action of non-opted out European patents and Unitary patents.
Infringement action of non-opted out European patents and Unitary patents.
Action for declaration of non-infringement.
Action for compensation for licences.
Action against any decisions of the EPO.

§. Scope of enforcement of the UPC decisions:

Patent owners will submit their infringement actions before a unique court, and will be able to ask for the enforcement of the UPC’s decisions in all Member States that have ratified the agreement.

An action before the UPC therefore eliminates the need for duplicate procedures in each EPC country where the patent has been validated. Actions before the UPC would thus be more efficient and time effective, especially when dealing with patent infringement across multiple Member States.

As a result, a single decision of the UPC will have the capacity to revoke non opted-out European patents for the whole territory of the 26 contracting member states. Conversely, an opted out European patent needs to be assessed by 26 national courts to face the same fate.

§. Case law.

The diverse backgrounds of the future appointed judges has raised the question of the coherency of the UPC case law. In fact, the panels of judges will be made of legally and technically qualified judges from different nationalities and legal traditions .

The UPC Agreement provides for such discrepancies to be addressed through the training framework provided for at article 19 of the UPC Agreement. However, it is difficult to assess whether such training will be enough to create a coherent interpretation of patent issues throughout the UPC divisions.

§. Cost:

In situations where the litigant initiates multiple actions before national courts, costs can add up quickly. Indeed, the litigant has to pay for the court fees of several national courts and the costs of legal representation.

Proceedings before the UPC could thus be cheaper than multiple national proceedings. In fact, although litigants would have to pay the UPC’s fixed and/or value based fees as well as the cost of representation, the action initiated would cover 26 countries.

§. A few examples:

You are the holder of a European patent during the transitional period and you want to end an alleged infringement of your patent:

If you have opted-out your patent, you will have to bring your infringement action before the national courts of the countries where your patent is protected and where the alleged infringement has been observed.
If you have not opted-out your patent, you will be able to choose between national infringement actions or a unique infringement action before the UPC.

You face a revocation action lodged by a third party against your patent:

If you have opted-out your patent, the third party must bring its action before the national courts of the states where the patent has been validated to obtain the revocation of the national part of the European patent.
If you have not opted-out your patent, the third party could choose to go before national courts or could chose to lodge its revocation action before the UPC to try to obtain the patent revocation in all the Contracting Member States.

Proceedings before the UPC in first instance shall consist of the following stages:

A written procedure.
An interim procedure, which may include an interim conference with the parties.
An oral procedure which, shall include an oral hearing of the parties unless the Court dispenses with the oral hearing with the agreement of the parties.
A procedure for the award of damages, which may include a procedure to lay open books.
A procedure for cost decisions.

The proceedings should last around one year before the First Instance Court. This is faster than in most European countries where the average length of an infringement action is around two years.

For example, in the First Instance Court of the UPC, an infringement action will cost €11,000; to which must be added a value-based fee ranging from €0 to €325,000 (depending on the value of the action). A revocation action on the other hand will cost €20,000.

These general guidelines are in no way meant as a substitute to legal advice from an IP lawyer and may not cover all the details of your specific situation.

24 May 20196 September 2019

UPC location confirmed for Paris central division

Paris central division location: Quai de la Mégisserie

The location of the Paris central division has been confirmed this week. It will seat Quai de la Mégisserie.

The court will hear physics, electricity, performing operations, transporting, fixed constructions, textile and paper patent cases (See Annex II of the UPC Agreement) in “functional” offices. Hence, although not in a justice-dedicated building the Paris central division will be very close to the historical Palais de Justice and the île de la Cité.

You can see pictures here

We now know all three locations of the central divisions, with the central division in Munich in the city courthouse in the Fasangarten neighbourhood and the London central division in an office building in Aldgate.

Other locations have also been made public:

Munich local division: Schleißheimerstr. 141, 80097 Munich(link is external)
Mannheim local division : Schubertstr. 11, 68165 Mannheim(link is external)
Dusseldorf local division : Cecilienallee 3, 40474 Dusseldorf(link is external)
Hamburg local division : Sievekingplatz 1, 20355 Hamburg(link is external) Milano local division: Via S. Barnaba 50, 20122 Milano Nordic-Baltic Regional Division: Scheelegatan 7, 112 28 Stockholm

As for the Court of Appeal, it will indeed be in Luxembourg as provided by article 9 of the UPC Agreement:

Court of Appeal: Nouvel Hémicycle, 1, rue du Fort Thüngen, L-1499 Luxembourg

9 May 20196 September 2019

Latest news: a few milestones have been reached

Where did the UPC stand at the end of 2018?

In December 2018 the Unified Patent Court Preparatory Committee published a statement summarizing last year’s major events for the Court. It listed notably Latvia and the UK’s ratifications of the UPC Agreement, as well as the progress of the technical and operational preparations.

On a less positive note, the statement also mentioned the fact that the German constitutional case was still pending.

Since the begining of 2019, a few milestones have since been reached:

Milestone 1: In January, Austria signed the UPC Protocol on Provisional Application (PPA). The PPA allows some provisions of the UPC Agreement to come into force early. This protocol will allow final preparations to take place, such as the recruitment of judges, and ensure that the UPC can start smoothly. Under Article 3, the PPA will come into force the day after France, Germany, the UK and 10 other countries ratify, or inform the depositary that they have parliamentary approval to ratify the Agreement and have consented to be bound by the PPA. So far France, the UK and nine other countries (Belgium, Bulgaria, Denmark, Estonia, Finland, Italy, Luxembourg, the Netherlands and Sweden) have already done so. Germany signed the PPA on 1 October 2015 but must now ratify it. However, Germany’s ratifications of the PPA and UPC Agreement, is on hold due to the constitutional complaint pending before the German Constitutional Court.

Milestone 2: In February, in Italy, the Parliament has amended its legislation (legislative decree n°18 dated 19th February 2019) to make it compatible with the Unitary Patent Regulation (EU 1257/2012) and the UPC Agreement. The Italian Industrial Property Code now recognises the unitary patent and introduces new exceptions to infringement (Article 27(c), (f), (g), (h) and (k) UPC Agreement), such as the “plant breeders’ exemption” (“The rights conferred by a patent shall not extend to any of the following: (…) c) the use of biological material for the purpose of breeding, or discovering and developing other plant varieties and the “interoperability exemption”) and the interoperability exemption (” The rights conferred by a patent shall not extend to any of the following: (…) k) the acts and the use of the obtained information as allowed under Articles 5 and 6 of Directive 2009/24/EC1 , in particular, by its provisions on decompilation and interoperability“) .

Milestone 3: In Germany, the constitutional review of the law enabling the country to take part in the UPC is still ongoing. The German Federal Constitutional Court has however listed the constitutional Complaint with the cases it will rule on in 2019. Moreover, in February 2019 the four committees of the German Parliament voted against a motion to repeal the UPC legislation. The motion will now return to the Bundestag for a definitive vote, which should a priori reject it.

Milestone 4: In March, the EPLIT published a short survey regarding the dress code for representatives before the UPC. The survey asked three questions: ” Should representatives wear uniform robes in oral proceedings before the UPC?” “Why should or shouldn’t they wear uniform robes in oral proceedings before the UPC?” and “If they should, which colour should the robe be?” Indeed, the draft Code of Conduct adopted by the Preparatory Committee mentions a dress code (“Finally, we note that once decided for the judges, some provision on the dress code for Representatives should be added to avoid possible discrimination.”). This is because in some participating member states, representatives already wear a robe, such as in France, Germany the Netherlands or the UK. The EPLIT states that apparently a blue robe has been proposed, and annouced the results of the survey at the EPLIT’s annual meeting. The results have not yet been published.

Despite some progress, the UPC’s start of operation is still very uncertain.

Indeed, although the UPC’s entry into force was announced for 2019, the uncertainty created by Brexit as well as by the German constitutional challenge has considerably slowed down the process. One can now hope that there is a better visibility over the UPC’s future once the EU and the UK agree on a Brexit deal.