Establishment of the Unified Patent Court (UPC):
The UPC is established via an international agreement: The Agreement on a Unified Patent Court (UPCA), Council of Europe, 11 January 2013. This is an international agreement/treaty between 25 of the 28 Member States of the European Union setting up the Unified Patent Court. The UPCA was not signed by Spain or Poland (or Croatia which has recently joined the EU) – but Italy has signed it, despite not entering into the enhanced cooperation to establish the unitary patent (UP).
For the UPCA to come into force:
- the UPCA must be signed AND ratified by 13 Member States, including France, Germany and the UK; AND
- amendments to the Brussels I Regulation to accommodate the UPC must come into effect (now set for 10 Jan 2015).
AND THEN, it will only come into force on the first day of the fourth month after those criteria are met.
Fulfilment of the criteria:
- Signature: Every EU Member State has signed the agreement except for Croatia, Poland and Spain, so there are sufficient signatories.
- Summary of Ratifications:
- Austria ratified on 6 August 2013
- France ratified on 14 March 2014
- Sweden ratified on 5 June 2014
- Belgium ratified on 6 June 2014
- Denmark ratified on 20 June 2014
- Malta ratified on 9 December 2014
- Luxembourg ratified on 22 May 2015
- Portugal ratified on 28 August 2015
- The Netherlands is making preparations to ratify, but has yet to lodge an instrument of ratification
- There need to be 5 more formal ratifications (including the UK and Germany) for the UPC regime to come into effect
- UK – The Intellectual Property Act 2014 provides for a new section 88A to be inserted into the Patents Act 1977 giving the Secretary of State power to make an order, giving effect to the UPCA. This will require a Statutory Instrument which is unlikely to go before Parliament until later this year. UK Government commentary also states that there will be no ratification until the fee system for the UPC is clear and agreed. Since the UK is one of the required ratifying states, the deposit of the ratification instrument may be delayed until all the practical arrangements for the UPC are in place. However, the UK IPO has indicated that the UK Government would not automatically delay the ratification of the Unified Patent Court Agreement (UPCA) until after the Brexit referendum. It the UK were to ratify this would leave only ratification by Germany and any four other contracting states needed to bring the UPCA into force. For our guide to Brexit, see here.
- Germany: The German Federal Minister of Justice announced in March 2014 at a speech to the Federal Association of German Patent Attorneys (link here (in German)) that the German government was planning to introduce draft legislation in the autumn to prepare for the UPC. No further signs of ratification have been seen however.
Sweden, Lithuania, Latvia and Estonia have concluded an agreement (see press release 4 March 2014) on a regional division of the UPC, although the last three have yet to ratify.
Sufficient ratification, therefore, is not expected shortly and given the consultation on the UK's ratification and the practical arrangements required to get the new court up and running, it looks more likely to be 2016 at the very earliest with many thinking 2017 as a plausible start date. However a recent press release from the Preparatory Committee (here) suggest a provisional set-up perhaps as early as the end of 2015.
To follow ratification see the table produced by the Council of Europe.
Countries which have not taken part in the enhanced cooperation procedure to establish the UP are Croatia and Spain; and which have not signed the UPCA are Spain, Croatia and Poland; Italy has signed the UPCA and is now making preparations to participate in the enhanced cooperation for the UP. Poland supported the enhanced procedure for the UP but has decided not to take part in the UPC and so UPs will not be valid/enforceable in Poland.