Tag: UPC Ratification

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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.

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No ratification of the UPC Agreement by the UK before the general elections

The EU is considering the relocation of the London UPC Central Division.

There will be no ratification of the UPC Agreement by the UK before the general elections:

The UK’s ratification of the UPC Agreement will have to wait for after the election of the next government. In fact, the UK parliament was dissolved at the end of April, 25 working days before the general elections. It was also dissolved before ratifying the UPC Agreement. This is likely to have a major impact on the starting date of the UPC. Indeed, it was initially announced that all necessary instruments of ratification would need to be deposited by the end of May. This was in order for the UPC to become operational in December 2017.

The Patent (European Patent with Unitary Effect and unified Patent Court) Order 2016 N°.388:

The UK has already amended the Patent Act 1977 through secondary legislation. The Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016 N°388, passed in March 2016, implements the UPC Agreement. It also defines its jurisdiction, the transitional provisions, necessary modifications, and conditions of enforcement of the Agreement.

Therefore the UK only needs to pass an order to implement the Privileges and Immunities Protocol, which it signed in December 2016:

  • The UK and Scottish parliaments must first approve this order.
  • The Privy Council will then give its the final assent.
  • Once this legislation has been passed, the UK will be able to formally ratify the UPC Agreement.

It is however uncertain when the UK parliament will examine the ratification bill. Indeed, depending on the Government’s priorities, it will present the bill to the Parliament either before or after the summer recess. This means that the UK’s ratification of the UPC Agreement could either take place between June and July or after September.

What consequences will a late ratification by the UK have on when the UPC will become operational? 

This new postponement of the UK’s ratification also raises questions as to Germany’s ratification. German parliament has in fact recently approved the ratification and amendment bills. Germany was thus expected to trigger the start of the UPC by depositing its instrument of ratification in August, after the UK had done so. However if the UK does not ratify the UPC Agreement by this date, Germany may postpone the submission of its instrument of ratification. This could potentially slow down again the start of operation of the UPC; not to mention the German general elections on 24 September 2017 which might also delay it further.

Therefore, this would mean that if -at best- the UK and Germany deposit their instruments of ratification respectively in July and August 2017, the UPC would become operational in February 2018, after the  6 months necessary to the provisional application.

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Ratification and amendment bills adopted by both houses of German Parliament

Ratification and amendment bill adopted by German Parliament

The ratification bill allowing the German government to ratify the Unified Patent Court Agreement and the bill amending German law to accommodate the Unitary Patent Package were adopted by both houses of German Parliament.

On 31st March, the German Bundesrat adopted, without any modification, the bill approved and sent by the Bundestag on 9th March 2017 for the ratification of the Unified Patent Court Agreement.  The Bundesrat’s decision states:

“Law resolution Of the German Bundestag

At its 956th meeting on 31 March 2017, the Federal Council (Bundesrat) adopted the Act adopted by the German Bundestag on 9 March 2017 in accordance with Article 23 (1), second sentence, Article 74 (2) in conjunction with paragraph 1 number 25 and 105 (3) of the Basic Law.”

This bill provides for the ratification of the Unified Patent Court. It describes the purpose and functioning of the UPC. It also sets out the cost to be borne by Germany and the anticipated budget of the UPC.

The Bundesrat also examined the second bill which will modify German patent law to accommodate the Unitary Patent Package.  The Bundesrat first examined this bill on 8 July 2017 and decided not to raise objections. It was then adopted by the Bundestag on 9 March 2017 without amendments. The Bundesrat therefore notes that there is no reason to submit the bill to the mediation committee.

This bill provides for the new European Patent with unitary effect to be incorporated into the German legal order:

  • It defines the situations which allow for the protection of an invention by a national patent and a European patent or a European patent with unitary effect.
  • It sets “a new compulsory enforcement rule (…) to enable the decisions and orders of the Unified Patent Court to be enforced without difficulty in Germany“.
  • A new compulsory enforcement rule will be introduced to enable the decisions and orders of the Unified Patent Court to be enforced without difficulty.
  • Finally, the German Patent and Trademark Office will be required to indicate in its register whether the patent has unitary effect of not.

Now that both Parliament houses have adopted the bills, the German executive and President must sign them. The bills must then be published in the German Federal Law Gazette to become legislation.

 

For a quick overview of the bills and official texts click on the following links:

Gesetzesbeschluss des Deutschen Bundestages  (dated 10/03/17)

Beschluss des Bundesrates (dated 31/03/17)

Explanatory note (dated 31/03/17)

Official page of the Federal Council meeting n°956

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German parliament approves the ratification of the UPCA:

Encouraging steps by participating member states towards the entry into force of the UPC Agreement

The German parliament approves the ratification of the UPCA:

On 9th March 2017, the German Bundestag approved the bill for the ratification of the Unified Patent Court Agreement and the bill amending German patent law. The Bundesrat, the second chamber of the German Parliament, will now debate the bill between the end of March and mid-May. The German executive and President must sign it before it is published in the German Federal Law Gazette and becomes part of the German legislation.

In a parallel move, the Bundesrat approved on the same day the bill enabling Germany to ratify the Protocol on Privileges and Immunities.

Both were  on the agenda of the Legal Affairs Committee of the Bundesrat for 15th March 2017. The Bundesrat webpage does not however give any indication as to the outcome of the discussion.

What next?

Germany will probably postpone the deposit of its instrument of ratification with the EU Council, until August. This will trigger the sunrise period before the launch of the UPC and the Unitary Patent on 1st December 2017.

 

 

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Italy has signed the Protocol on the Provisional Application of the UPCA and other -good- news about ratification:

UK ratifies the UPC Agreement

On 20th February, at the EU Competitiveness Council, Italy signed the UPC Agreement on the Provisional Application. (See our post here on the Protocol). The Protocol on Provisional Application allows  “final decisions on the practical set up of the Court” to enter into application. This includes for example the “recruitment of judges and testing of IT systems“and  the registration of opt-out demands. So far 12 countries (including Italy) have signed it.

 

This was not the only  progress towards the UPC becoming operational that occurred recently:

  • On 8th February 2017 the German Parliament examined the draft legislation authorizing the ratification of the UPCA.
  • On 13th February 2017, the Spanish Socialist Worker’s party (PSOE)  called on the Spanish government to reconsider joining  the UPC.  It argues that not taking part in the Unitary Patent package is detrimental to the competitiveness and innovation of Spanish companies.  It notes that, regarding the language requirements, Spanish companies would not be in a different position than before the EPO.  The PSOE finally contends that Spain should asks for the transfer of the London seat of the UPC central division to Spain.

 

Télécharger (PDF, Unknown)

 

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A general update on the ratification progress in the 26 signatories of the UPCA:

UK ratifies the UPC Agreement

The Institute of Professional Representatives before the EPO (epi) has published a table summarizing the state of the ratification and the planned local, regional and central divisions of the UPC.

Beyond the 11 countries (Austria, Belgium, Bulgaria, Denmark, Finland, France, Luxembourg, Malta, Netherlands, Portugal, and Sweden) which have ratified the UPCA and deposited their instrument of ratification, the 15 remaining states can be divided between those that have made progress towards ratification, and those that have either come to a standstill or have not yet started the process of ratification.

I. Countries which have the least satisfactory record for ratification:

Cyprus: No progress with regard to ratification.

Czech Republic: According to the epi, although no progress has taken place regarding ratification “a study is expected to be carried out on the impact of the UPC on Czech firms and on the Czech economy and budget.“

Croatia: The position of the new government on joining the enhanced cooperation in view of taking part in the UPC is awaited.

Greece: No progress with regard to ratification.

Hungary: No progress with regard to ratification but “(a) study on the impact of the UPC on the Hungarian economy, ordered by the Hungarian Patent Office, was conducted by PWC. The outcome of this study was negative. However, a new study, ordered by the Ministry of Justice, as the competent body, is under preparation by EY. The result of the study will not be binding.“

Ireland: The new Irish government has shown no political willingness to organise a referendum for the ratification of the UPC.

Poland: After participating to the enhanced cooperation, Poland decided not to sign the UPCA. Its position has not changed.

Slovak Republic: No progress regarding ratification. the Slovak government “will wait until the system is operational. Officials are discussing whether a study on the impact of the UPC on the Slovak economy should be conducted. There are concerns about the increase in density of patents, the level of the fees and the pro-patent approach of the UPC. The Ministry of Justice will look into the CJEU decisions.“

Spain: The position of the new government on the unitary patent package is awaited.

II. Countries that have moved towards ratification :

Estonia: According to the epi, the Estonian Ministry of Justice “has made a draft law for ratification. This has been circulated at the end of September 2016 among Estonian patent attorneys for opinion. The date for ratification is not yet known.“

Germany: The ratification bill has been brought before Parliament. More here.

Italy: “On 30 Sept 2015 Italy has joined the unitary patent and became the 26th member of the enhanced cooperation on unitary patent protection. After approval by the Government, the Italian Parliament (…) has approved the UPCA ratification instrument.” Italy has not yet however ratified the UPCA. More on the italy participation to the UPC here, here, here, and here.

Latvia: According to the epi, the Ministry of Justice  had planned “to submit documents on the ratification to the Cabinet of Ministers in the first half of year 2016“.  Latvia has not however ratified the UPC yet.

Lithuania: “Draft legislation to ratify the UPCA, to amend the patent law and to establish the regional division has been submitted to Parliament.” However, the epi indicates that due to the coming elections, the UPCA ratification is not expected before spring 2017. More here.

Romania: “In Romania, the ratification process is ongoing. The Protocol on provisional application was signed on 14 September 2016. (…) Ratification by Romania is expected to be finished in the second half of 2016.“

Slovenia: “In Slovenia the legislation for ratification of the UPCA has been approved by Parliament. The Government is expected to deposit the instrument of ratification shortly, as it announced at the meeting of the EU Competitiveness Council on 29 September 2016.“

III. Situation of the UK:

The UK  adopted the Statutory Instrument [SI] in March 2016. See here. This SI adapts the national patent law with respect to the UP and the UPC. It will enter into force when the UPCA enters into force. A second SI is required to implement to the Protocol on Privileges and Immunities. This is expected to be finished within short time.

However, now that the UK has decided to leave the EU it is unclear whether it will ratify the UPCA. The epi emphasises that “(t)he UK may only continue to participate in the Unitary Patent by entering into a new international agreement with the participating EU Member States. Further, it is legally possible for the UK to continue to participate in the UPC after “Brexit” and to host the Life Sciences/Chemistry section of the court, but changes would have to be made to the UPC Agreement.” And finally, “(t)he UK’s continued participation would require it to submit to EU law regarding proceedings before the Court. It would also need to sign up to an appropriate jurisdiction and enforcement regime“.

The UPC Blog has looked in depth at the multilayered issues surrounding Brexit and the UPC, which you can find here:

“What is the impact of the UK’s referendum on its EU membership on the UPCA?”

“What future for the UPC now that the UK has voted to leave the EU?”

“The future of the Unitary Patent package as seen by the EPO”

“UK’s IPO update on Brexit”

“More on Brexit from the AIPPI”

“An inquiry into the effect of Brexit on the UPC and UP“

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Ratification by the Netherlands confirmed

Encouraging steps by participating member states towards the entry into force of the UPC Agreement

The Netherlands have deposited on 14/09/16 their instrument of ratification to the general Secretariat of the Council, thereby becoming the 11th country to have ratified the UPCA.

For the Unified Patent Court Agreement to come into effect 13 countries including France, Germany and the United Kingdom must deposit their instruments of ratification. The UK’s ratification however has become very uncertain after Brexit and Germany’s ratification has allegedly been put on hold until the UK’s participation to the UPC and UP is decided.

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Ireland: One more step towards ratification

Encouraging steps by participating member states towards the entry into force of the UPC Agreement

Ireland published last week its legislative programme for the current parliamentary session which sets out the legislation that the Irish Government will seek to publish over the next few months. It contains notably the “Amendment of the Constitution (Unified Patent Court) Bill” that will amend Article 29 of the Constitution for it to recognize the Agreement on a Unified Patent Court .  

Although heads of bill, or key areas of this bill, have already been approved on 23rd July 2014, Ireland will have to hold a referendum to approve this amendment to the constitution. The Supreme Court has in fact previously held that any transfer of sovereignty, or the transfer of judicial powers to an international body, requires a referendum . The referendum has already been planned for by the Irish Government in its Programme for partnership government (p.153, mistakenly referred to as the Universal Patent Court…), although no date has yet been published.

Finally, Bristows UPC highlights that the Law Society of Ireland has published an ad for the Irish Department for Jobs, Enterprise and Innovation to invite patent judges and practitioners in patent law to put themselves forward for nomination to the Advisory Committee of the Unified Patent Court, that will take soon over the work of the Preparatory Committee.

Ireland seems therefore to have its eyes firmly set on taking part in the UPC, although with its coming live in Spring 2017, whether Ireland will be ready on time is uncertain.

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More ratification news: Lithuanian government introduces three bills to its parliament in view of the ratification of the UPCA

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

The Lithuanian government has introduced to its parliament the bills to ratify the UPC Agreement, and to create a regional division of the UPC with Sweden, Estonia and Latvia .

It also introduced a bill to amend its existing patent law, guaranteeing dual protection (or double patenting), the enforcement of the Unified Patent Court’s decisions, or the modalities of an action for violation of EU law .

Lithuania could thus become the 10th country to ratify the UPCA after Austria, Belgium, Denmark, Finland, France, Luxembourg, Malta, Portugal, Sweden.