Today, Germany has ratified the Agreement on a Unified Patent Court.
This has been confirmed by a statement of its Federal Ministry of Justice.
Germany’s ratification launches the countdown as set under Article 89 of the UPC Agreement according to which the Agreement will enter into force on 1 June 2023. According to an announcement by the UPC, the ‘Agreement’s entry into force will mark a new era for European innovation with the launch of the Unified Patent Court and the Unitary Patent.’
According to the statement of the German ministry of justice (translated in Google), the ‘court will initially decide patent disputes with immediate effect for 17 states (Germany, France, Belgium, Bulgaria, Denmark, Estonia, Finland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Austria, Portugal, Sweden, Slovenia). Further EU member states can join the unitary patent protection in the future. As part of the preparations, the member states have agreed on a code of civil procedure for the new procedure, in which modern technology is used. The files of the court are managed fully electronically in a case management system; the decisions of the court are also issued in electronic form.’
According to an announcement of the EPO, European patent applicants have already shown strong interest in the new Unitary Patent system. ‘Since the EPO launched its transitional measures on 1 January to encourage an early uptake of the new system, more than 2 200 requests for unitary effect and/or for delay of grant have been filed.
The Unitary Patent system will mark the single most important reform in the history of the European patent system since its creation in 1973.The new system will enable uniform patent protection across all participating EU members states by way of a single patent application filed with the EPO and provide a centralised platform for Europe-wide patent litigation before the Unified Patent Court. The 25 EU member states participating in enhanced cooperation for the Unitary Patent package are estimated to have a combined GDP of more than 14 trillion euros (corresponding to 80% of the entire EU’s GDP) and incorporate a population of nearly 400 million people – more than the US, Canada and Australia combined.’
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Where (in which court) can the decision to declare it into force while the conditions are not met can be challenged for malministration?
Simple and SME friendly: You have a client being sued before the UPC. Ignore the proceedings and the court. Receive an enforcement title against your client. Go to your district court (the smallest and nearest you can have) and claim to have the UPC decision declared null and void since it comes from a non existing court. Watch the case climb up the successive stages of appeal.
Summer 2023 will be quite hot
Any news regarding the allocation of pharma cases ?
Interesting question. If it is to be Milan, as apparently suggested by “well-informed sources”, this raises all sorts of questions to which there do not appear to be acceptable answers. For example:
What might the legal basis be for replacing “London” with “Milan” in the UPC Agreement?
When ratifying the UPC Agreement, did national legislatures relinquish to the AC the right to select central locations for the UPC (and/or other, similarly important rights)? If so, which provision(s) of the UPC Agreement make this crystal clear?
What is to be done about the fact that none of the AC decisions appointing judges mention Milan as the “instance of the … division of the Court of First Instance” to which the judges have been appointed? (See Article 3(5) of the UPC’s Statute)
Finally, on a purely pragmatic note, if all of the Member States are agreed upon Milan as the new (third) location for the Central Division, what on earth is preventing the Member States from agreeing, and then ratifying, an amended UPC Agreement? Whilst doing so might slow things down considerably, would that not be preferable to setting up an international court in a manner that blatantly contravenes international law?
The only proper way to replace London by Milan would have been to renegotiate at least Art 7(2) UPCA and Art 89(1) UPCA, Art 3 PPA and Art 18 PPI, so that the UPCA would be clear of any direct or indirect reference to the UK.
But this would most probably have meant the death knell for the UP/UPC system, as more time goes by, the drawbacks of the system are more apparent. Everything had to be quick. The Brexit and the first German challenge brought an end to the quick entry into force of the UPC. It is still the hope of the proponents of the UPC that the fait accompli they are seeking will be gobbled by any national or international jurisdiction.
We can look at the VCLT from every angle, the VCLT provides legal ways to resolve some problems, but nothing of what is suggested up to now by the proponents of the UPC corresponds to what is foreseen in the VCLT. The proponents of the UPC are simply ignoring the rule of law.
An important question will be: is the UPC a court according Art 6(1) ECHR. More than reasonable doubts are permitted.
This is an exciting development for the European patent system and a great step forward for innovation across the continent. It’s great to see that modern technology is being used to make the process more efficient and the agreement will help to make the patent system more unified. Looking forward to seeing the full impact of this new agreement!
@ Claire Atherton
I would like to share your enthusiasm for the UPC, but reality is not what you claim it will be.
As no economic study of the impact of the UP/UPC system has been carried out, it is more than doubtful that it will represent a great step forward for innovation across the continent.
You should also not forget, that the UPC opens a single door for litigation to any patent holder. As a majority of patent holders is not residing in Europe in general, and in member states of the UPC in particular, I see a real danger for Europe. The mistake which had been made by creation the European trademark is being repeated here.
The big industry and internationally active lawyer’s firms will be the great beneficiaries. Is this really good for Europe? Allow me to doubt it!
Why are countries like Poland or the Czech Republic not wanting to participate? For fear for their industries. Do all technical domains need protection all over Europe? The modest average number of validated European patents speaks a different language.
That electronic communication has been chosen is certainly a good thing and all judiciary or administrative institutions will, over time, go this way.
Whether the patent system will be more unified remains to be seen. It is not sure that the national judiciary or administrative institutions, not to speak about intergovernmental organisations will follow the UPC in its claim interpretation. As far as validity is concerned, this is more or less certain.
What is then the real benefit of adding a layer of case law? None as it will simply add more confusion!
Incredible that nobody notices that the PPA, the PAP and the UPC cannot enter into force because the UK ratification is missing.
Plenty of people do well realise that there is a host of legal problems, whereby the consequences of Brexit is only one of them.
The proponents of the UPC have simply decided to ignore any legal problem and hope to solve those with solutions which lack even the beginning of a legal basis.
They want a return on investment. Whether it is against the rule of law is of no interest to all proponents of the UPC. The big buck is awaited. That’s enough.
That experienced legally qualified persons are wanting to participate to such a cause is rather disappointing.
With due respect to the German Minister of Justice, what he has published is of the same level of what his predecessor has published.
He is repeating what the lobbyist in his ministry have told him to say.
When the acting head of the Administrative Committee of the UPC is one of the higher civil servants of the Ministry of Justice, there is no surprise whatsoeever.
Incredible that nobody realises that the UK no longer met the definition of Member State of the European Union at the date of entry into force.