The Unified Patent Court (UPC) expected to start around 1 January 2023
The UPC train is back on track, and with the new German ruling rejecting to put the ratification on hold, we are one step closer to joint enforcement and invalidation of European patents in all UPC Contracting Member States in one trial.
The German Federal Constitutional Court (Bundesverfassungsgericht) made its long awaited ruling regarding the two pending UPC cases on 9 July 2021. The court rejected two applications for a preliminary injunction against the German laws ratifying the UPC Agreement. With this ruling, German can now continue the ratification process regarding the UPC Agreement. Read the press release from the German Federal Constitutional Court.
The ratification process has been on hold since 2016, partly due to Brexit and partly because of an initial complaint to the Bundesverfassungsgericht, and when a ruling was made on this after about 3 years then an additional two complaints were filed in Germany putting a brake on the ratification.
According to the UPC Preparatory Committee's website, signatures from two Contracting Member States are still missing on the “Protocol on Provisional Application” before the UPC can start. The Preparatory Committee will subsequently publish a timeline. However, the chair of the UPC Preparatory Committee has said to Juve Patent that he expects the UPC to become operational at the end of 2022 or in early 2023.
Before this happens, it must be decided where to place the division of the court that was to have been located in London. This division will hear cases about chemistry, comprising the very central field of medicinal product patents. Several countries want to house this division, and it is not clear at this point whether the division will be in Milan (home to the third highest number of patent applications (after the UK leaving the UPC) when the agreement was made), whether to distribute the cases between France and Germany already housing the two other seats of the central division of the court, or whether to place it in a third Contracting Member State.
In any case, once more companies should begin thinking about what consequences the UPC will have for them, and they must also decide whether to “opt out” some of their patents from the exclusive competence of the Court and stick with national enforcement, which will be an option for an initial transitional period of 7 years. The initial transitional period may be prolonged by up to 7 years.
Plesner will continue to monitor the developments, and we can provide information or advice about the consequences of the UPC’s entry into force.
You may also find more information about the UPC on our UPC website, or you can gain insight into the rules and their expected effects in our book "The Unified Patent Court" (in Danish: "Den Europæiske Patentdomstol").