Major step forward for the Unified Patent Court

 

After the Bundestag (German Parliament) passed the Act approving the Agreement on a Unified Patent Court (UPCA) on 26 November 2020, the Bundesrat (German Federal Council) also approved this Act today.

 

Thus, eight years after the adoption of the EU patent package by the European Parliament in December 2012, there is now (almost) nothing standing in the way of the launch of the Unified Patent Court - and thus also the EU Unitary Patent.

 

The steps which are still required for the German Approving Act to enter into force are a mere formality. The Approving Act still has to be countersigned by the Federal Government, executed by the Federal President and published in the Federal Law Gazette.

 

Only then can Germany deposit the Certificate of Ratification of the UPCA with the General Secretariat of the Council of the European Union.

 

Now that more than the required 13 contracting member states of the EU have ratified the UPCA, the three member states with the most European patents in force still need to ratify it before it can enter into force. After the UK's withdrawal, these are Germany, France and Italy. France and Italy have already ratified it, so that the entry into force of the UPCA only depends on Germany's ratification.

 

Germany has assumed a gatekeeper function in consultation with the other contracting member states: It is planned that Germany will at first only deposit the Certificate of Ratification of the Protocol on the Provisional Application of the UPCA in spring 2021, which will bring the Protocol into force. This will give the Unified Patent Court sufficient lead time to start crucial preparatory work, such as filling judges' posts, renting premises and completing the IT infrastructure.

 

Only when this preparatory work is almost complete will Germany - probably after about six to eight months of preparation - also deposit the Certificate of Ratification of the UPC. This will allow the Agreement on the Unified Patent Court to enter into force three months later and the Unified Patent Court to finally start its work.

 

According to an optimistic forecast, the deposit of the Certificate of Ratification of the UPCA could take place as early as autumn 2021, so that the green light for the Unified Patent Court could be given in spring 2022.

 

The Approving Act, which had already been passed in 2017 and which had the exact same content, had been declared null and void on formal grounds by a decision of the Federal Constitutional Court on 13 February 2020 due to a violation of the two-thirds majority requirement (see our analysis here). This had necessitated a new vote on the Approving Act.

 

However, constitutional complaints have already been announced against the newly adopted Approving Act as well.

 

After the required two-thirds majority was achieved in both the Bundestag and the Bundesrat in the current vote, it is not to be expected that newly filed constitutional complaints will again delay the entry into force of the UPCA.

 

After the UPCA will have entered into force, the transitional regime under Art. 83 UPCA begins, i.e. the parallel jurisdiction of the Unified Patent Court and the national courts for classical EP (bundle) patents. Patentees who want to ensure that their patents do not become subject of nullity actions before the Unified Patent Court must have submitted their opt-out declarations by then.

 

 

For more information on this subject and other questions concerning the Unified Patent Court and the UPC, please visit our website.