Bulgaria and Romania are gearing up for their ratification of the UPC Agreement

Brexit and the German constitutional challenge

The Unified Patent Court is getting closer to its entry into operation. Indeed after the UK’s ratification, Bulgaria and Romania are gearing up.

Bulgaria:

It has been reported that the Bulgarian parliament has adopted a bill to ratify the Protocol on Provisional Application . The  Parliament will now send the law to Bulgaria’s President who must issue a decree for promulgation, which in turn will be published in the State Gazette.

Romania:

In Romania, the government published its legislative programme for the rest of 2018. It reportedly aims at ratifying the UPC Agreement and its Protocol on Provisional Application by September 2018.

So where do we stand?

Regarding the UPC Agreement: At present, 16 countries have ratified the UPC Agreement (Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Sweden, and the UK). However, the UPC Agreement will enter into force when the UK, France, Germany and 10 other countries will have ratified the Agreement. This means that only Germany’s ratification, on hold  due to a pending constitutional complaint, is now required.

Regarding the Protocol on Provisional Application: The PPA allows some provisions of the UPC Agreement to come into force early. This in order to allow for final preparations for the start of the UPC system, such as the recruitment of judges.  However under Article 3 of the Protocol, its entry into force will only arise a “the day after 13 Signatory States of the Agreement on a Unified Patent Court including Germany, France and the United Kingdom, have either ratified, or informed the depositary that they have received parliamentary approval to ratify, the Agreement on a Unified Patent Court“. So far, the UK, France and 8 other countries (Belgium, Denmark, Estonia, Finland, Italy, Luxembourg, the Netherlands and Sweden) have fulfilled those requirements. Therefore, the PPA will come into force when Germany  and two other countries have done so.

The structure of the Unified Patent Court in 3 points

What should you know about the Unitary Patent?

(1) How will the UPC be structured?

The UPC will comprise a Court of First Instance, a Court of Appeal and a Registry. The Court of Justice of the European Union will hear questions on referral and preliminary rulings on European Union law.

The Court of First Instance will be composed of a central division and several local and regional divisions across the Contracting Member States.

The Court of Appeal will have only one division and, together with the Registry, will be located in Luxembourg.

(2) Where will the Central Division be?

The central division will be divided between three seats: Paris, London and Munich.

LondonParisMunich
Human necessitiesPresident's OfficeMechanical engineering
ChemistryPerforming operations and TransportingLighting
MetallurgyTextiles and PaperHeating
Fixed constructionsWeapons
PhysicsBlasting
Electricity

(3) Where will the Local and Regional Divisions be?

The local divisions will be located in Paris, Munich, Mannheim, Dusseldorf, Hamburg, Milan.

One regional division is announced in Stockholm and will bring together the Baltic states with Sweden.

This list is not exhaustive and more local and regional divisions may be confirmed in the coming months.

Summary Diagram:

 

drawit-diagram-3

 

For the exact locations see our post on the subject.

EU Competitiveness Council call for the UPC to be brought into operation as quickly as possible

EU commissioner Elżbieta Bieńkowska at EU competitiveness Council 29-05-17

EU Commission calls on contracting member states to intensify efforts:

During the EU Competitiveness Council that took place on 29th and 30th May “(s)everal delegations and the Commission called on member states to intensify their efforts so as to bring this major reform into operation as quickly as possible.”  

Similarly, in anticipation of this meeting the Association of European Chambers of Commerce and Industry and the British Chambers of Commerce had addressed a letter to the UK government and a press release to this effect. In both communications the chambers urge the Government to “do everything within its powers to facilitate the completion of the complex and lengthy ratification process, regardless of the general election and Article 50 negotiations”. The chambers also encouraged the UK government “to continue to play a constructive and active role in ensuring that the Unitary Patent becomes a reality as soon as possible.”

The provisional application phase start date originally planned for “end of spring 2017”: 

Indeed, the Preparatory Committee had recently set the end of May as its target date for the beginning of the provisional application phase. However, as highlighted by the EU commissioner Elżbieta Bieńkowska at the last EU competitiveness council, this target date has not been met. This means that the possibility for the UPC to become operational by the end of 2017 is looking bleak.

The EU Commissioner pointed out that even the protocol on provisional application could not be implemented yet. In fact, it still lacks the ratification of three contracting member states having already ratified the UPC Agreement. This means that the provisional application phase is being delayed. In the Commissioner’s view this is particularly troublesome. She argues that if the provisional application phase is delayed beyond the summer break the UPC will not become operational in 2017.

The Commissioner however also specifically pointed out that the UK has still not ratified the UPCA. This is of course due to the general elections that will take place in June 2017. The UK minister has nonetheless declared that the UK still wished to participate in the UPC and will ratify the UPCA.

The Protocol to the Agreement on a Unified Patent Court on provisional application

protocol to the agreement on unified patent court on provisional application

What is the “Protocol to the Agreement on a Unified Patent Court on provisional application”?

On 1st October 2015, the member states representatives signed the “Protocol to the Agreement on a Unified Patent Court on provisional application”.

This protocol allows some parts of the UPCA to be applied before the UPC enters into force. It concerns  “article 1-2, 4-5, 6(1), 7, 10-19, 35 (1, 3 and 4), 36-41 and 71(3) of the Agreement on a Unified Patent Court and Article 1-7(1), 7(5), 9-18, 20(1), 22-28, 30, 32 and 33 of the Statute of the Unified Patent Court“. The Protocol will allow  “final decisions on the practical set up of the Court” to enter into application, such as the “recruitment of judges and testing of IT systems“, or the early registration of opt-out demands.

When will it enter into force? 

According to Article 3 the Protocol will only enter into force after 13 states, that have already signed and ratified the UPCA, approve the Protocol. The member states can do so either by signing ratifying or approving it.

On 21st March 2017,  the UK, Sweden, France, Germany, Luxembourg, Denmark, Slovenia, Hungary, Italy and Romania had signed the protocol. Out of these 10 countries only France, Sweden, Denmark, Luxembourg and Italy have ratified the UPCA. This means that 8 further ratifying countries will need to approve the Protocol before it can enter into force.

 

You can view the protocol below:

 

Télécharger (PDF, 362KB)

 

You can view the signing ceremony here

 

 

 

 

 

 

 

 

 

Last meeting of the Preparatory Committee before the provisional application phase:

Brexit and the German constitutional challenge

Last meeting of the Preparatory Committee:

The UPC Preparatory Committee met for the last time last week in the Hague. It was an opportunity for the Preparatory Committee to agree minor amendments to the Rules of Procedure, which it will soon publish.

The Provisional Application Phase:

This meeting signals the start of the next stage of the UPC, the provisional application period. This period will start after 13 states, that have already signed and ratified the UPCA, approve the protocol on provisional application. (See here for more on the Protocol on Provisional Application). The Preparatory Committee declared that “the Committee (is) confident this would happen in order to enable the provisional application to start at the end of May 2017“.

The Protocol is necessary for the Court to make preparations before it becomes operational in December 2017. The provisional application phase will notably see the nomination of judges, whose process of recruitment has now started. It will also allow for the testing of the IT system and “ensure resources are in place and trained in readiness for the Court opening”.

Updates on the Protocol on Provisional Application of the Unified Patent Court Agreement:

protocol to the agreement on unified patent court on provisional application

The Protocol on Provisional Application of the Unified Patent Court signed on 01/10/15  has had a few updates since its our first post:

  • Hungary signed the Protocol on 07/10/15 after  its representative was prevented from signing the Protocol on 01/10/15, as the necessary Hungarian legal requirements had not been completed on time.
  • The Netherlands made a declaration stating that it will be bound by the provisional agreement from the day it will ratify the Unified Patent Court Agreement.
  • The United Kingdom made a reservation to the Unified Patent Court Agreement stating that it “shall not provisionally apply Article 4 of the Agreement on a Unified Patent Court”.

The Protocol will allow  “final decisions on the practical set up of the Court” to enter into application such as the “recruitment of judges and testing of IT systems“,  to permit a smoother set up of the court. The provisional application phase will also be used to allow for early registration of opt-out demands.