The legislation which enables Germany to ratify the Unified Patent Court Agreement has entered into force. It was published in the Federal Law Gazette on Thursday 12 August 2021 and came into force a day later.
The development follows the dismissal, last month by the German constitutional court, of two requests for an interim injunction against German ratification of the UPCA. These complaints and an earlier complaint which was filed in 2017 and partially upheld, have severely delayed the creation of the Unified Patent Court and the Unitary Patent.
German ratification of the UPCA and the Protocol for its Provisional Application (PPA) is indispensable for the entry into force of the European patent project. Earlier it has already been agreed that Germany will delay this step until preparations for the start of the court are almost completed. In line with article 89 of the UPCA, Germany will trigger the start of the Unified Patent Court by formally depositing its instrument of ratification with the secretariat of the European Council, on the first day of the fourth month after the deposit.
For the preparations to start, support for the PPA from two more member states besides Germany must be found. According to a Bristows report, “at least two countries have indicated that they are in a position to consent relatively quickly”.
Once the provisional application phase starts, a budget becomes available, recruitment of judges can start and extensive tests of the CMS will be done, among others. It is expected the PPA will last at least six months.
Last month the UPC Preparatory Committee stated it will publish a “timeline and a more detailed plan for the start and execution of the Provisional Application Period (…) in due course.” It hasn’t reacted yet to the latest developments in Germany, but after years of waiting the ball is now back in its court and and the start of the UPC in the course of next year now seems a realistic possibility.