The new unitary patent (UP) and Unified Patent Court (UPC) system is moving forwards at an increasingly fast pace: Italy has now joined the unitary patent; a Protocol to the Agreement on a Unified Patent Court (UPCA) on provisional application has opened for signature; UPC training has started for technically qualified judges; and there have been updates on the expected timescales for further UPCA ratifications.

Italy joins the UP

On 1 October, Italy announced it had joined the enhanced cooperation to establish the unitary patent. This brings the number of states involved in the enhanced cooperation to 26 out of the 28 EU Member States, with only Spain and Croatia not participating. However, whilst Poland has participated in the enhanced cooperation, it has yet to sign the UPCA, without which the UP cannot be enforced in Poland.

For more on where the UP will have effect see here.  

Protocol to the Agreement on a Unified Patent Court on provisional application (of the UPCA):  signing begins, 1 October 2015

The EPO has announced that on 1 October, in Luxembourg "in the margins of the Competitiveness Council", seven member states (including France, Germany and the United Kingdom) signed the Protocol on the Provisional Application of the Agreement on the Unified Patent Court (UPCA)".  A number of other states affirmed their support and expect to sign the Protocol soon.  For the Protocol to come into effect, 13 signatory states (which have signed the UPCA) and have ratified the UPCA or informed the depositary that they have received parliamentary approval to ratify the UPCA must have signed and ratified, accepted or approved the Protocol (in accordance with Art. 2(2) of the Protocol) or declared by unilateral declaration or in any other manner that they consider themselves bound by the provisional application of the articles of the UPCA mentioned in Art.1 of the Protocol. These Articles cover, inter alia, the establishment of the UPC, the Registry, the mediation and arbitration centre and the training and appointment of judges and the provisions allowing for the UPC and Statute and Rules, legal aid, remuneration of judges, the setting up of local or regional divisions, the pool of judges provisions.

The EPO stated that "[t]his Protocol is another milestone towards the realisation of the UPC. The provisional application of the institutional, financial and administrative provisions of the Agreement clears the way to make all the necessary legal and practical arrangements, including the appointment of judges for the Court, well in advance. This should ensure that the Court is fully operational and ready to hear cases on the very day the Agreement formally enters into force - expected towards the end of 2016. In addition to the seven member states signing the Protocol today, more have agreed to be unilaterally bound by it or have promised to sign it soon when their own preparations are more advanced".

UPC training for technically qualified judges starts

The Centre for International Intellectual Property Studies (CEIPI), of the University of Strasbourg, has launched a training program for the technically qualified judges (TQJ)of the Unified Patent Court. Here is the program booklet which sets out the training in greater detail. The training will be run by judges, lawyers, members of EPO and academics from around Europe (see list here) including several English judges and QCs and also judges from non-UPC participating countries (Switzerland, which cannot join as not a member of the EU, and Spain which has so far refused to sign the UPCA or participate in the UP). So far 43 are being trained to become technical judges of the new court. Rt. Hon. Professor Sir Robin Jacob is the Chair of the Scientific Board of the CEIPI Training Program. The training will take place through September, October and November 2015.

UPCA ratification update

A summary of the expected ratification timelines of various jurisdictions:

  • Finland is making progress towards ratification by the end of 2015, publishing a draft Government Bill which will be considered this autumn. The national legislation will be amended to align it with the provisions of the UPCA (involving changes to its Patent Code, inter alia)
  • The Netherlands, Lithuania and Estonia are progressing towards ratification in the next few months
  • Germany's ratification process will start in Autumn 2015
  • UK's ratification is likely in Spring 2016