The German Federal Council, the Bundesrat approved draft legislation to ratify the Unified Patent Court Agreement and to amend German patent law in its 31 March session.
It means the German procedure to ratify the UPCA nears completion. The Parliament, the Bundestag, had already given its approval on 9 March 2017. In order to finalize the ratification procedure, the German president and government will have to put their signatures and the legislation must be published in the Federal Law Gazette, the Bundesgesetzblatt. And finally the German instrument of ratification will have to be deposited with the General Secretariat of the EU Council.
This last formality is crucial, as it may trigger the start of the Unified Patent Court. As is outlined in Article 89 UPCA, the agreement enters into force on (…) ‘the first day of the fourth month after the deposit of the thirteenth instrument of ratification (…).’ Twelve member states have already ratified the UPCA over the last years.
Both Germany and the UK, however, are mandatory ratifiers. In the UK, the ratification procedure will likely be completed soon as well (apart from the formal deposit of the instrument of ratification).
Earlier this week, Eileen Tottle, head of secretariat of the UPC Preparatory Committee, told Kluwer IP Law that Germany and the UK are in close contact about the moment they will formally complete the ratification procedure. In order for the UPC to start in December 2017, as is the ambition of the Preparatory Committee, either Germany or the UK has to deposit its instrument of ratification in August 2017. The other deposit must be before or in August.
Tottle also said that the main concern for the Preparatory Committee at this moment is gathering enough support for the Protocol to the Agreement on a Unified Patent Court on provisional application, so practical preparations for the start of the UPC, such as recruitment of judges, can start in full by the end of May.
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