On 1 October 2015, representatives of seven Member States (including the UK, France and Germany) signed a Protocol on the Provisional Application of the Agreement on a Unitary Patent Court (‘the Protocol’), on the fringes of a meeting of the Competitiveness Council of the European Union. The Protocol is another step towards the establishment of the Unitary Patent Court (“UPC”), allowing for early application of certain provisions of the UPC Agreement and the Statute of the UPC.

A copy of the Protocol can be found here. Article 25 of the Vienna Convention on the Law of Treaties 1969 and customary public international law permit the provisional application of treaty provisions.

The aim of the Protocol is to allow certain practical and administrative steps which are necessary before the Court is ready to open its doors for business to be taken before formal entry into force of the UPC Agreement. These steps in include: the recruitment of judges; the development and testing of IT systems; and establishment of the UPC Registry, to allow for early processing and registration of opt-out requests.

The Protocol will only come into force once 13 Member States have signed the Protocol or declared themselves to be unilaterally bound by it, and have also either ratified or informed the depositary that they have received parliamentary approval to ratify the UPC Agreement.

The European Patent Office has announced (see here) that the Protocol ‘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’.  The latest timetable from the UPC Preparatory Committee anticipates that the work of the Preparatory Committee will complete around June 2016 with the Court being ready to hear its first case at the start of 2017.