After the British government gave the go-ahead for the UPC system to enter into force in November 2016 by announcing that – despite Brexit – they intend to ratify the Agreement on the Unified Patent Court (UPCA), the Preparatory Committee has again resumed its work. The Preparatory Committee announced this week a preliminary timeline for the entry into force of the new UPC system.
Although, the timeline was announced under the disclaimer that there are a number of factors that will dictate whether it is achievable, the Preparatory Committee takes the view that the UPCA could enter into force and the court could become operational by December 2017. The Provisional Application Phase (PAP) is assumed to start end of spring 2017, presumably in May. This would mean that the organization of the UPC as such will be established and the UPC’s formal governing bodies will be operational.
For patent holders it is important to note that the sunrise-period for the possibility to opt-out European patents is now planned to start in early September 2017. With this sunrise-period, the system provides a minimum of 3 months for the patent holders to opt-out their existing European patents and patent applications from the jurisdiction of the UPC before the Court becomes operational. After this sunrise-period the opt-out is however not excluded and can be declared at any time as long as no suit has been brought before the UPC with respect to the patent at issue. However, without this opt-out declaration in the sunrise-period, patent holders run the risk that a patent suit may be filed before the UPC on day one of the operation of the Court which will then exclude the possibility to opt-out an already granted European patent from the jurisdiction of the UPC.