Although the entry into force of the UPC Agreement will be delayed by the UK’s general elections, the time is opportune to do a short update of the next milestones before the UPC becomes operational:
As soon as the required number of member states signatories to the Provisional Application Protocol is met, the provisional application phase will start.
The Protocol will enter into force after 13 states, that have already signed and ratified the UPC Agreement, approve the Protocol. So far 14 states have signed it or declared being bound by it. However, only 8 of them have already ratified the UPC Agreement. The Protocol will allow for some institutional, organisational and financial provisions of the UPC Agreement to be implemented before the Agreement enters into force. It will notably allow for the Court to have legal personality. It will also allow for the Administrative and Advisory Committees to make necessary preparations before the entry into force.
During the provisional application phase:
The Administrative Committee must appoint judges form the shortlist published by the Advisory Committee.
The Administrative Committee must also ensure that the IT and Case Management System are finalised and tested. This should ensure that they are ready for the Court opening.
The Budget Committee must approve the Court’s budget endorsed by the Preparatory Committee in its 17th Meeting (July 2016).
The EU Commission will be requested to give its opinion on the compatibility of the Rules of Procedure with European Union Law.
Once the compatibility is confirmed, the Rules of Procedure will be adopted by the Administrative Committee of the UPC.
Between July and September 2017:
The UK and Germany, two of the three contracting member states upon which the entry into force of the UPC Agreement is conditional must ratify the said Agreement. The UPC Agreement has already been ratified by 12 contracting member states, including France. It will however only enter into force once 13 contracting Member States, including France, Germany and the UK ratify it.
In September 2017 -or after the UK and Germany ratify the UPC Agreement- the sunrise period for opt-outs will start.
This will give approximately three months to businesses to make any adjustments to their IP strategies. During this time patent owners will be able to register their opt-outs through the UPC Case Management System. It might also be possible for patent owners to apply to the EPO for unitary effect. This however still has to be confirmed by the EPO.
Finally, in February-March 2018 the UPC should become operational. (See our post on how the UK’s late ratification of the UPC Agreement will delay the start of the UPC)