Latest news: a few milestones have been reached

Latest news and milestones from the UPC

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.

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)


“Un passo più vicino”: The Italian government has approved the draft legislation for the ratification of the UPCA

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

The Italian Council of Ministers has published a press release announcing that it had approved the draft law on the ratification of the Unified Patent Court Agreement that will “lead to the completion of Italy’s participation in the enhanced cooperation in the Unitary Patent package”.

The government declared that “this new phase in the development of the internal market will enable innovating Italian operators to benefit from a patent valid in the whole of the European Union, guaranteed by a supranational and specialized jurisdiction.”

The press release also highlights the fact that Italy will host a local division of the UPC, which the government hopes will be a project “that presents a significant potential for the improvement of the Italian capacity”.

Finally, it is interesting to note that the Italian government refers to the Italian local division of the UPC as a “signal from the (Italian) government to continue to protect and promote the Italian language”, while the issue of the promotion of the Italian language was the very reason Italy initially stopped taking part in the UPC.

Italy joins the Unitary Patent

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

We reported a few weeks ago that Italy had formally requested the European Commission to join the unitary patent. It appears from the European Commission website that Italy’s request was accepted and that it has now become the 26th member of the enhanced cooperation on unitary patent protection.

Italy was  initially opposed to the Council of Europe’s decision to allow the enhanced cooperation and challenged it, along Spain, before the Court of Justice of the European Union in May 2011. However after the CJEU rejected Italy and Spain’s actions in April 2013, Italy decided to sign the Unified Patent Court but abstained from participating in the enhanced cooperation.

Here our post on Italy and Spain’s challenges of the Unitary Patent from 2011 to its resolution in 2015.

Italy (but also Bulgaria, Cyprus, Czech Republic, Estonia, Finland, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Romania, Slovakia, Slovenia, and the United Kingdom)  must now ratify the UPCA.


Italy one step closer to become a signatory to the UPC Agreement

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

While summer was in full swing, it seems that we missed an important piece of information about the UPC Agreement…

In fact, Italy notified the European Council on 07th July 2015 of “its intention to participate in the enhanced cooperation in the area of the creation of unitary patent protection and in the enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements“.

Italy, therefore, seems committed to become a signatory to the Unified Patent Court Agreement, and the 26th country to participate to the Unitary Patent.

Its letter to the General Secretariat of the Council can be found here.