Another Step Closer to a Unified EU Patent Court

By Sarah on January 25, 2022

We reported last year that the Unitary Patent and Unified Patent Court (UPC) were progressing. The main hurdle to clear was sufficient countries ratifying the Protocol on the Provisional Application (PAP-Protocol) of the UPC Agreement to allow the provisional application period (PAP) to begin.

On 27 September 2021 Germany ratified the PAP-Protocol and on 15 October 2021 Slovenia ratified the PAP-Protocol.

The PAP-Protocol has entered into force

The Preparatory Committee announced on 19 January 2022 the deposit by Austria of its ratification of the PAP-Protocol of the UPC Agreement. This was the necessary 13^th ratification, which means that the UPC enters the PAP and so the PAP-Protocol is now in force. During the PAP, the last part of the preparatory work in establishing the UPC will be conducted. The practical work will start with the inaugural meetings of the governing bodies of the UPC, namely the Administrative Committee, the Advisory Committee and the Budget Committee. Technical legal judges will now be appointed and trained, court buildings fitted out and IT systems completed. The Preparatory Committee have indicated that the PAP will last at least eight months.

The Unitary Patent

The European Patent Office (EPO) has issued some communications regarding measures to support early uptake of the unitary patent system. Two transitional measures have been put in place to support applicants:

Request for delay in issuing the decision to grant a European Patent; and
Early request for unitary effect.

These measures will be available from the date on which Germany deposits its instrument of ratification of the UPC Agreement until the date on which the UPC Agreement comes into force.

Ireland

Ireland’s position remains the same. It has been a signatory to the UPC Agreement since 2013, however it has not been ratified. A referendum is necessary for ratification and a simple majority of the electorate is required. The reason a referendum is required to ratify the UPC Agreement is because this agreement purports to establish a court of limited jurisdiction as permitted by Article 34.3.4 of the Constitution. A referendum has not been scheduled but could be expected this year. Lobbying groups have recently called on the Government to set out a timetable for Ireland’s ratification of the UPC Agreement.