UP/UPC - remaining issues near a resolution

UP/UPC within reach

The entry into force of the UP/UPC system has met with many obstacles. However, since the rejection by the German Federal Constitutional Court of the second complaint in July 2021, see our previous update, the road may now be paved for the full entry into force of the system around mid-2022, according to the official homepage of the Unified Patent Court, https://www.unified-patent-court.org/news/what-decision-german-federal-constitutional-court-means-unified-patent-courts-timeplan.

An outstanding issue relates to the seats of the central division of the Court of First Instance. When the system was initially agreed upon, the United Kingdom was part of the EU and of the Unified Patent Court Agreement, and London was – together with Paris and Munich – specifically referred to in the Agreement as housing one of the seats of the central divisions of the Unified Patent Court. The United Kingdom withdrew from the Agreement in 2020,  and the effect of that is yet to be fully resolved. Depending on whether a pragmatic or a formalistic view is applied, this issue may present further obstacles and possible delays.

However, provided the “London problem” is solved, the next step will be the entry into force of the UPC’s provisional application phase (PAP). The provisional application phase is the final phase of the Unified Patent Court’s set-up. During this phase the last parts of the preparatory works can be completed, budget and IT systems will be finalised and judges will be recruited. The provisional application phase is expected to last approximately eight months.

The provisional application phase has not yet entered into force, but is expected to do so during the autumn of 2021. When the preparatory work has progressed satisfactorily, the last step will be the ratification of the Unified Patent Court Agreement (UPCA) by Germany. The UPCA will then enter into force on the first day of the fourth month following the deposit of this instrument.

Once the provisional application phase enters into force, we will provide more detailed information on how best to prepare for the new system, including what needs to be considered before the entry into force of the system.