The Unified Patent Court will open its doors for cases around mid-2022. That is the expectation of the UPC Preparatory Committee, which has published a time plan for the Provisional Application Period (PAP) and start of the UPC today. According to the plan, the PAP will have to be approximately eight months “to conclude all the work that needs to be done”.
The publication is a reaction to the entry into force last Friday of ratification legislation in Germany for the Unified Patent Court Agreement, following the dismissal of requests for interim injunctions against this legislation by the German Constitutional Court in July. This opened the road to the start of the UPC and Unitary Patent system, in which Germany has a central role.
On its website, the UPC Preparatory Committee wrote:
“After the Order dated 23 June 2021 of the German Federal Constitutional Court (FCC), the way is cleared for Germany to participate in the Agreement on a Unified Patent Court (UPCA) and the Protocol on the Provisional Application of the UPCA (the PAP-Protocol).
The first step, before the full entry into force of the UPCA will be Germany’s ratification of the PAP-Protocol. This can now take place imminently, given that the German Federal President has signed the ratification bill on 7 August 2021, and it has been promulgated on 12 August 2021. It should however be kept in mind that the German ratification is not sufficient since the consent of two further participating Member States is required for the PAP-Protocol to enter into force and mark the start of the provisional application period – the PAP. These additional ratifications are expected to take place in a timely manner during autumn of this year.
The PAP is the final phase of the Unified Patent Court’s set-up. When the PAP-Protocol enters into force, the legal capacity and organizational capability of the UPC will be established and the last part of the preparatory works can be completed. During the PAP, the governing bodies of the Court will be assembled and all the secondary legislation prepared by the Preparatory Committee will be adopted. The budget and the IT systems will also be finalised. A crucial exercise during this period will be the finalisation of the recruitment of the judges of the Court. The Preparatory Committee foresees that approximately eight months will be required to conclude all the work that needs to be done during the PAP.
As soon as the preparatory work has progressed sufficiently and the participating Member States are confident that the UPC can start in an orderly manner, the last outstanding instrument of ratification of the UPCA itself will be deposited 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 UPCA enters into force, the UPC will start its work and be available to the users of the European patent system.
At this point in time, it is estimated that the UPC will start operations around mid-2022.”
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I do not want to repeat what I have said in a parallel thread, but it is not by dodging the problem created by the mention of London in Art 7(2) UPCA that the UPC will be working on solid legal foundations.
The problem is serious and cannot be ignored!
I have not yet seen a convincing and compelling argument allowing to ignore London in Art 7(2) UPCA.
I am even surprised that lawyers can seriously envisage the “provisional” transfer of the duties allotted to London to Paris and/or Munich.
The whole communique of the UPC Preparatory Committee looks more like wishful thinking than looking at the reality created by the Brexit. As long as this reality has not been duly and correctly faced and the necessary legal steps not taken, it does not appear reasonable to decide anything for the owner of a European patent than a systematic op-out.
If the UPC goes nevertheless on the road with all this problems, I fear that other complaints will be formulated, either before the CJEU or before national constitutional courts.
It would have been much better to ask the CJEU to give its opinion on the UPCA as it had been requested for EPLA.
Even if the proponents of the UPCA were reluctant before Brexit, the new situation created by Brexit should have led to a request for opinion by the CJEU on the UPCA as it stands. It is difficult to understand why this has not been done.
Trying to go through a brick wall, can hurt very badly.
If the intention was not to repeat earlier comments in a parallel thread, it seems to have missed its mark.
Thanks for your comment.
If you would have taken the bother to correctly compare the threads you would have realised that you could have kept quite.
It will only hurt if there is a sufficiently independent judiciary that is willing and able to inflict pain.
It is perhaps possible that some national courts might object to the fact that the UPC lacks a proper legal basis … for example on the grounds that, under the Vienna Convention, there is no way to interpret either the UPC Agreement or its Protocols in a manner that glosses over the fact that the UK’s participation is mandatory.
On the other hand, which national court would have jurisdiction to rule on this point, let alone have the gumption to reach the only logical conclusion?
The main problem here is that the key pieces of legislation are international treaties. As we have seen with the EPC, no ruling of a national court will ever be viewed as providing a definitive (and hence binding) interpretation of an international treaty. Further, I have no doubt that the CJEU will dodge any difficult questions by claiming that it has no jurisdiction to rule upon the validity of the UPC Agreement.
One might hope that the ECtHR would object to the UPC on the grounds that it lacks lawful judges (as there can be no lawful judge if the treaties underpinning the UPC lack a proper legal basis). However, when it comes to dealing with (other) international bodies, it seems that the ECtHR is always inclined to overlook even the most obvious of problems … for example as illustrated by the failure of the case filed by SUEPO (subsequent to the appalling decision of the Dutch Supreme Court) alleging breaches of fundamental rights by EPO management.
In essence, when it comes to international treaties, it seems to me that there is only ever as much adherence to the rule of law as the participating states can be bothered to enforce. If the UPC’s supporters get their way, the judges of the UPC will be starting off from the terrible position of being forced to overlook the lack of proper legal basis for the legislation upon which the UPC is based. Given such a start, as well as other obvious (governance) flaws in that legislation, it seems somewhat unlikely that the various divisions of the UPC will end up operating in a manner that companies (and the general public) in Europe find to be entirely unproblematic.
For a sense of perspective, the governance flaws in EPC1973 and EPC2000 were much less obvious … and yet we are now in a situation where there is clear evidence of problems (to say the least!) with the management of the EPO, as well as of a lack of independence of the Boards of Appeal.
This is not to say that the situation is hopeless, it is just that knowing the correct interpretation of an international treaty is of no use when one is faced with a political will to proceed based upon an incorrect interpretation. The challenge in such a situation is to find an effective way to restore sanity. And if you find such a way, please do let me know!
The BVerfG in its latest decision stated, that the question of UK-participiation can not be constitutionally reviewed. Instead they said it is subject to “normal” interpretation of the treaty.
To me this sounded like a pointer to the EuCJ, doesn’t it?
I can only but agree with you.
I would not be as pessimistic as you are when it comes to the CJEU. I have not yet given up every hope.
If the notion of rightful judge should keep any meaning, the CJEU should act.
A possible way to force a proper amendment of the UPCA would be to systematically op-out upon grant of an EP. With only a few cases to deal with, the whole UPC might then become a financial disaster.
It is clear that at the beginning the number of opt outs will be relatively high as only some test cases will be converted in UP. It is only if the case law develops in a favourable direction, whatever one wants to understand under this topic, that the UP system will be used.
Depending on the technical area it will in any case not be interesting to pay renewal fees for a UP. This could also become a problem for the UP/UPC.
Should it come to a clash of case law between the case law of the BA and that of the UPC, what is foreseeable, users of the system will become much more cautious.
I am not quite sure why you would be optimistic about the CJEU. See, for example, paragraph (b) of Art. 267 TFEU, as well as the ruling in C 572/15:
“the Court has already held that adjustments set out in an annex to an Act of Accession are to be the subject of an agreement between the Member States and the applicant State and that they do not constitute an act of an institution, but are provisions of primary law which may not be suspended, amended or repealed otherwise than by means of the procedures laid down for the revision of the original Treaties (see, to that effect, judgment of 28 April 1988, LAISA and CPC España v Council, 31/86 and 35/86, EU:C:1988:211, paragraph 12)”.
I can think of many reasons why the CJEU would be inclined to use similar logic as an excuse for declining to rule upon the (in)validity of the UPC Agreement.
Frankly, it is more than a little bizarre that the EU would agree to legislation that creates a unitary title under EU law but then entrusts the granting and enforcement of that title to institutions that are established under international law, and hence outside of the reach of all EU legal norms. To me, this suggests that there is a fundamental problem with the UP Regulation … though, in relation to the complaints filed by Spain, the CJEU has already found a way of ducking that issue.
On the issue of opting out, I’m old enough to remember the genesis of the PCT and the EPO and all the talk back then about the risk of putting all your eggs in one basket. The PCT was very slow to take off.
DXThomas envisages that only a few test cases will take the UP route. I wonder though.
I can imagine the bulk pharma filers investing in a spread of cases, distributed between opt-outs and UP route patents, aiming for a sweet spot in the distribution which combines reduced annuity fee budgets with full power of enforcement through infringement litigation.
What do others think?
Dear Max Drei,
You are right when you remind us of the reservations expressed by potential applicants towards the PCT and the EPO in the seventies. The fear of putting all the eggs in the same basket was real.
It however turned out that those treaties had a strong legal basis and the way the PCT and the EPC were handled by the responsible authorities showed that the fears were unjustified and the two systems proved to be a success story.
I see this quite differently as far as the UPC is concerned. For a start, by dodging the problem of Art 7(2) UPCA it will start on a wrong legal footing. The first party loosing before the UPC will make everything possible to fight this decision, and the question of the actual conformity with Union law will be at the centre of the discussions. Why on Earth the UPCA has never been submitted to the CJEU for opinion as it was the case for EPLA.
There also many other problems which I have mentioned and I will not dwell on them.
That there will be a mix of UP and a mix of opt-outs, it might take quite a while for cases coming before the UPC. In general it is cheaper to come to an extra judicial settlement rather than to fight before court. The IP budgets are not extensible at will or for the benefits of litigating lawyers. It is only if it will be clear that the UPC comes up with reasonable decisions that we will see if the whole UP/UPC system is worth it.
Just a small caveat, on budgets. The way I understand it, the corporation has one for drafting, filing, prosecution and maintenance of its patent portfolio, and quite another one, entirely separate, for fighting patent disputes. The former is tightly constrained and expected not to change much, year by year. Those setting it for an employer that is a global pharma corp, and those implementing it, will find the cost saving offered by the UP to be seductive.
As to the latter, what budget to allocate to winning a patent dispute is subject to different pressures and constraints. When giant ego’s are involved, there is always the possibility of an unconstrained budget for doing “whatever it takes” to see off the competitor.
So, I suspect the UP will be relied upon heavily, despite the legal uncertainties. I also suspect that in the very first UP dispute, the loser will not back down until after the case has been taken all the way to the CJEU. Great news for the “leading” patent litigation firms, eh?
The use of the PCT and or the EPO route for patentees has never been driven by considerations of a “strong legal basis”. What matters to the patentee is the resulting product, a granted patent. If the systems are user friendly and do not catch applicants out unawares, they will use the system, particularly if it has cost/cash flow benefits.
Once a system starts to show potentially dangerous failings, the applicant will consider alternatives. With the EPO, the developing A123(2) situation, with the so-called ‘gold standard’ effectively requiring literal disclosure, is one such failing.
If I follow your logic, then due to the developing A123(2) situation, which you consider a failure, your advice is thus to drop the route via the EPO, then the UP/UPCA will never exist for lack of patents granted by the EPO.
It remains that in spite of some problems, the PCT and the EPC have never started with a problematic legal situation. And this is a great difference with the UPCA.
What is the agenda to remove the UK from the PPA? Get 2 more countries to sign it, even though the UK is still mentioned in there?
It would be a very pragmatic solution to ignore UK in the the PPA or London in Art 7(2) UPCA.
But then we end up in a legal jungle as treaties and agreements would not be worth the paper they are written on.
I might be called naive or optimistic, but then we would end up in a society in which the right of the strongest prevails. This is not what I want for my children or grandchildren.
I’ll continue the discussion about Art.87(2) here, before the comments in the other thread close.
Brexit is not a patent treaty or Union law. Brexit is an event. It changed the players, not the rules. We’re still members to the same patent treaties and EU member states still have to comply with the same Union law. The same people who earlier argued that post-Brexit UK could remain a party to the UPCA now seem to argue that the UPCA is somehow incompatible with Union law and should therefore be amended. But if the UPCA is not compatible with Union law, someone should be able to point to some EU law and article that makes it incompatible.
Arguably, it’s not Brexit but the UK’s withdrawal from the UPCA that causes the current problems with Art 7(2) and the PPA.
For Art 7(2): The London seat of the Central Division is not linked to the participation of the UK in the EU or the UPCA. Is there actually a legal problem here? Or is it just a matter of political and practical undesirability to have a UPC court in London. Art 87(2) is clearly not intended to change the UPCA when one or more member states are not happy with the content anymore.
For the PPA: Countries decided that they wanted a new patent system, but only wanted it to start if DE, FR and UK were to take part. The UK later decided to withdraw. The only logical conclusion then is that you can’t start the system without ratifying an amended version of the system.
@ five cents,
Your comment is interesting and at the same time puzzling.
Do you mean that the London section could be left in London and just be staffed with citizens of UPCA member states?
I do follow you when you consider that the system cannot be started without ratifying an amended version of it.
In the parallel thread I have explained why the UP/UPC system is not the system with which the European harmonisation is the best!
The UK does no longer wish to have the London Section and to continue the preparations for starting its operation. This ie evident from the fact that the UK has withdrawn on July 20, 2020 its ratification of the Protocol on Privileges and Immunities of the UPC. Without such a Protocol an international authority has no legal basis for acting on the territiry of a State.
The Gordon & Pascoe opinion in item 89 considered that the a court in London could not make preliminary references to the CJEU without further measures in place and in addition (not considered by Gordon & Pascoe) the UK territory is now not subject to Art 21 of the UPCA.
If that’s correct then in accordance with 1/09 presumably Art 87(2) does kick in and problem can be quickly solved (provided member states agree on the solution).
If it’s not correct and i/ being a court common to EU member states is sufficient and ii/ somehow a court can legally exist in the UK as a national court common to the EU members without any legal agreement with the UK, then as you suggest a diplomatic/financial settlement with the UK might work to hire space in London.
If I understand well your argumentation, you consider that Art 87(2) UPCA could be used to transfer the duties allotted to London to another location, and hence the problem of Art 7(2) UPCA be resolved.
A contrario would it mean that a “provisional” transfer to Munich and/or Paris and a “final” transfer later to another location is not supported by Art 87(2)?
Technically, there is still till the end of the year to file further constitutional complaints in Germany.
Stjerna unveiled further problems in the 2012 emails written by the Ministry of Interior, where they mention that the Statutes of the Court can be adopted at a 3/4 majority, while for example, the Statutes of the CJEU are adopted at unanimity. National parliaments can be sidelined if they don’t agree with the way the Court is designed.
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