The General Secretariat of the Council of the European Union, has declared that the Protocol on Provisional Application of the UPC Agreement has entered into force today (19.01.22) after Austria deposited its instrument of ratification of the Protocol yesterday, giving legal capacity to the court and allowing the provisional application period to commence. The final practical preparations for the new court system can now be made, safe in the knowledge that the UPC will commence. Work will include the setting up of the functional committees which will run the new court system, the recruitment and training of judges, the practical arrangements for the new court locations and finalisation of the UPC Rules of Procedure.

“This event marks the start of the Provisional Application Period (PAP) and the birth of the Unified Patent Court as an international organisation. During the PAP, the last part of the preparatory work in establishing the Court will be conducted. The practical work will start with the inaugural meetings of the governing bodies of the Court, namely the Administrative Committee, the Advisory Committee and the Budget Committee. Thereafter the crucial work of finalising the recruitment of the judges of the Court will be carried out. It is deemed that the PAP will last at least eight months. When the State Parties are confident that the Court is functional, Germany will deposit its instrument of ratification of the UPC Agreement, which will trigger the countdown until this Agreement’s entry into force and set the date for the start of the UPC’s operations”.

The UPC could be as little as 8 months away

Although there is no prescribed period for the provisional application period, the UPC Preparatory Committee states that it is deemed that it will last at least 8 months (see below), which suggests that the UPC may be ready to hear cases in early autumn this year.

Once the UPC commences, unitary patents (UPs) will also become available, providing a single patent right across all participating EU Member States (currently 17 of them, but more are likely to confirm their participation in the run-up to the start of the new system). UPs will be enforced exclusively through the new court system. EPs designating participating states will also fall under the jurisdiction of the UPC (although national courts will also have jurisdiction over them for a transitional period of at least 7 years). EPs can be opted out of the UPC’s jurisdiction and there will be a “sunrise period” during which applications to opt-out can be made in advance of the UPC commencing.

For more on these issues and how the UPC and UP system will work, see our see our dedicated UPC and UP Hub.

German ratification will be the final trigger

Germany’s instrument of ratification of the UPCA must be deposited before the UPC can commence. But once this is lodged with the EU Council it will trigger the timetable set out in the UPC Agreement (that the UPC will start functioning as a court on the 1st day of the fourth month after the month in which the last required ratification is deposited). Germany will not do this until the preparations are truly complete. Today’s announcement means that sufficient of the participating states have committed to the UPC for it to be guaranteed to commence once Germany does so.