In January 2017, the Preparatory Committee for the Unified Patent Court announced that it is now working to an assumption that the Agreement on the Unified Patent Court ("UPC Agreement") can enter into force, and so the UPC and the Unitary Patent become operational, in December 2017. However, the Preparatory Committee is very clear that this timetable is conditional on a number of factors, the most important of which, it says, is obtaining the necessary ratifications of the UPC Agreement and accessions to the Protocol on Provisional Application ("PPA").
Here we examine which countries still need to sign or ratify the requisite legal instruments and how the Preparatory Committee hopes these steps will come together to meet the provisional December 2017 date for the UPC and the Unitary Patent to begin.
The UPC Agreement
Before it can come into force, a minimum of 13 countries (out of the 25 participants) are needed to ratify the UPC Agreement, by depositing their relevant national instruments at the depository of the Council of the European Union. So far, 12 have ratified the UPC Agreement (see here), but these do not currently include Germany and the UK, which are mandatory. Attention is therefore focussing on where these two countries are in their ratification procedures.
In Germany, the Bundesrat (the German Federal Council) indicated on 10 February 2017 that it does not have any objections to the draft law necessary to ratify the UPC Agreement. The first of three legislative readings is scheduled to take place in the Bundestag (the German Federal Assembly) on 16 February 2017, with the legislation expected to be approved by the late spring.
In the UK, the Intellectual Property Act 2014 makes provision for the Secretary of State to ratify the UPC Agreement and contains enabling legislation to allow the government to make the necessary changes to national law using a Statutory Instrument ("SI"). The SI in this case is (2016 No. 388), which was signed on 12 March 2016. However, it is only one of two SIs needed to enable the UK to ratify the UPC Agreement. The other SI is required to reflect the UPC Protocol on Privileges and Immunities ("PPI"). Ratification of the UPC Agreement by the UK will not be completed until the SI legislating for the PPI is in place.
The Protocol on Privileges and Immunities
The PPI is necessary to give the UPC the privileges and immunities it needs to operate, such as certain immunities from suit for its judges and staff, special tax arrangements and the protection of the court's documents and assets. As well as the UK, the PPI must be ratified by France, Germany, Luxembourg (where the three sections of the central division will be located and the Court of Appeal).
The PPI was laid before the UK Parliament on 20 January 2017 where it must sit for a minimum of 21 sitting days. Unless either House of Parliament votes that the PPI should not be ratified, the PPI will have the necessary approval after this period. Following this, the national implementing SI – a Privileges and Immunities Order – can be laid before the UK Parliament. It is currently thought that this SI, followed by the UK ratification of both the PPI and the UPC Agreement, will then be completed by May.
However, the PPI will not enter into force until 30 days after the date on which the last of France, Germany, Luxembourg and the UK have all ratified the PPI. To date these are all outstanding (see here), although Germany and the UK are expected to do so by about May.
There is also the matter of collecting the necessary accessions to the Protocol on Provisional Application of the UPC (PPA).
Protocol on Provisional Application of the UPC
The PPA establishes a provisional period in advance of the full opening of the UPC, in order for it to be fully set up in advance of the first day of its operation. This includes final steps in the practical set up of the Court, such as the recruitment of judges and testing of IT systems. Importantly, it also brings the Registry into being, allowing for early registration of European patent opt-outs (the 'sunrise period'). The provisional protocol does not come into force until the day after 13 contracting Member States to the UPC Agreement have either ratified the UPC Agreement or have informed the depository that they have received parliamentary approval to ratify the UPC Agreement. However, these same 13 must also have either signed the Provisional Protocol or declared that they consider themselves bound by it.
Of the countries that have deposited their instrument of ratification of the UPC Agreement or informed the depository that they have the necessary approval, not all have signed the PPA or declared themselves bound by it (see here). To date, three further countries need to do so before the PPA can come into force. The Preparatory Committee of the UPC is currently working on the basis that this will happen by May 2017, enabling the provisional period to begin straight away. However, despite aiming to start the provisional period in May, the Preparatory Committee does not expect the sunrise period to begin until September 2017.
How does this come together?
For the UPC Agreement to come into force and the UPC and the Unitary Patent to begin, the ratification instruments of the 13 countries must be deposited with the Council of the European Union (informing the depository of the necessary approval is not enough). However, as a practical matter, before the UPC can start work, the provisional period must have been running long enough for the UPC and Registry to be ready to operate. As discussed above, there are currently a number of ratifications and signatures / declarations still necessary first, the Preparatory Committee working on the basis that these will be in place by May 2017.
All that is then required is for the UK or Germany (it is expected to be Germany) to be the last to deposit its ratification instrument at the European Council. This will be timed to make sure that the UPC and its Registry are completely ready. The UPC and the Unitary Patent then come into force on the first day of the fourth month after this deposit. The Preparatory Committee is currently aiming for this day to be 01 December 2017.