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.
