In its meeting yesterday, the EU Competitiveness Council discussed the status of the implementation of the unitary patent and Unified Patent Court (UPC) system. In the press conference here, Commissioner Bieńkowska reported that steps still needed to be taken by three more member states in order for the provisional application of the UPC Agreement to enter into force, and so the target date of 29 May (i.e. the day of this meeting) for the start of the provisional application phase unfortunately would not be met. However, she considered that if the provisional application phase could start before the summer break it would still be possible for the system to come into operation this year. (The UPC Agreement’s Protocol on Provisional Application allows various parts of the Agreement to come into force early and the ‘provisional application phase’ to start, during which final preparations for the start of the UPC system, such as recruitment of judges, can be completed.)

The UK was represented at the meeting by Lord Prior (Parliamentary Under Secretary of State at the Department for Business, Energy and Industrial Strategy), and Commissioner Bieńkowska noted that because of the UK general election the UK’s ratification of the UPC Agreement would be a matter for the next government but that the UK minister was currently still taking the line that the UK would ratify. Before the meeting, the British Chambers of Commerce and EUROCHAMBRES sent a joint letter to Greg Clark (Secretary of State for Business, Energy and Industrial Strategy) encouraging the UK government, “both before and after the election, to continue to play a constructive and active role in ensuring that the Unitary Patent becomes a reality as soon as possible, and also stating that in the run-up to the meeting, they would be urging key member states that have not yet expressed their consent to be bound by the Protocol on Provisional Application of the UPC Agreement to do so without further delay.” EUROCHAMBRES published the letter in a press release. Also, EUROCHAMBRES included in a letter to Christian Cardona (Malta’s Minister for the Economy, Investment and Small Business), in which it commented on some issues to be discussed in the meeting, the following: “EUROCHAMBRES thus calls on those member states whose ratification is required to explore all available means to complete the ratification of the UPC Agreement in time for it to come into force by December. Additionally, we urge those member states that still need to take measures to allow for the entry into provisional application of the UPC Agreement to proceed with these as quickly as possible in order to avoid any delay.

The Protocol on Provisional Application will come into force the day after 13 states (including France, Germany and the UK) have: either ratified or informed the ‘depositary’ that they have parliamentary approval to ratify the UPC Agreement; and have consented to be bound by the Protocol (by, for example, signature or a declaration). Eight countries meet this requirement: Belgium, Denmark, France, Finland, Italy, Luxembourg, the Netherlands, and Sweden. Germany and the UK have each consented to the Protocol. Austria, Bulgaria, Malta and Portugal have each ratified the UPC Agreement but have not yet consented to the Protocol, and it appears that other countries (such as Greece, Estonia, Lithuania and Slovenia) may be in a position to enable the Provisional Application Phase to start before the summer break.