The Preparatory Committee for the European Unified Patent Court (UPC) has indicated its intention that the UPC will become operational and the UPC Agreement will come into force in December 2017.
Following the UK’s vote to leave the EU, there has been uncertainty as to the future of the UPC and when it might launch. Whilst in June 2016 the Preparatory Committee had said that the technical implementation “should continue to progress as envisaged” in spite of the Brexit vote, this has not borne out in practice. For example, in October 2016 the Preparatory Committee announced that the recruitment of UPC judges would be delayed as a result of Brexit and the uncertainty as to the UK’s involvement in the UPC system. As reported (in our previous OnPoint), such uncertainty was alleviated by the announcement in November 2016 that the UK intended to ratify the UPC Agreement. On 16 January 2017 the Preparatory Committee announced a revised timetable to launch.
To enable a smooth and prompt roll out of the UPC, certain provisions of the UPC Agreement will come into force before the UPC becomes fully operational. This Provisional Application Phase will enable the infrastructure of the court to be set up in advance and includes matters such as the establishment of its supervisory committees and the appointment of judges – in essence everything that is needed for the court to open for business when the UPC Agreement comes into force in full. The Preparatory Committee is aiming for the Provisional Application Phase to start at the “end of Spring 2017, presumably in May”. It is anticipated that the UPC will actually become operational in December 2017.
The UPC will have jurisdiction to hear disputes in respect of all European patents (including non-unitary European patents). However, for an initial transitional period holders of non-unitary European patents will be entitled to opt their patents out of the jurisdiction of the UPC (unless an action has already been started in the UPC). The Preparatory Committee envisages it being possible to make “opt-outs” from early September 2017. This is of practical importance as opting out before the UPC becomes fully operational avoids the risk that litigation is brought in the UPC before the opt-out is made (which would remove the ability to opt-out the relevant patent).
The Preparatory Committee highlights the provisional nature of this timetable - stating that it is dependent on (amongst other things) outstanding ratifications of the UPC Agreement. However, such ratifications are not expected to interfere with this timetable and the Preparatory Committee’s announcement is a positive indication that the UPC will be up and running by the end of the year.
The Preparatory Committee’s announcement is available on the UPC website.