On 24 July Bulgaria ratified the Protocol on Provisional Application of the UPC Agreement (Protocol). Four more ratifications/declarations are needed, including Germany, for the Protocol to come into effect and allow the practical workings of the Unified Patent Court (UPC) to be established in preparation for the court coming into operation, which will happen once the UPC Agreement (UPCA) itself has been sufficiently ratified. In both cases, ratification by Germany is a prerequisite. Recently reported comments from the Chairman of the UPC Preparatory Committee have revealed that there may be at least a 6-8 month delay once Germany is ready to ratify the UPCA, given how much needs to be done for the UPC to be ready to open its doors. It therefore looks increasingly unlikely that the UPC will take effect before Brexit unless Germany ratifies the Protocol in the next few months.
The Protocol allows the provisional application of the institutional, financial and administrative provisions of the UPCA to enable the necessary legal and practical arrangements to be made in contemplation of the establishment of the UPC, including the appointment of judges. The EPO has commented that the Protocol “should ensure that the Court is fully operational and ready to hear cases on the very day the [UPC] Agreement formally enters into force by the contracting states”.
However, for the Protocol to come into effect, 13 signatory states (which must include France, UK and Germany) which have ratified the UPCA or informed the depositary that they have received parliamentary approval to ratify the UPCA, must have signed and also either ratified, accepted or approved the Protocol or declared that they consider themselves bound by the provisional application of the articles of the UPCA mentioned in Article 1 of the Protocol. These Articles cover, inter alia, the establishment of the UPC, the Registry, the Mediation and Arbitration Centre, the training and appointment of judges, and the provisions allowing for the UPC Statute and Rules, legal aid, remuneration of judges, the setting up of local or regional divisions, and the establishment of the pool of judges.
Two of the three mandatory signatories and ratifiers/declarers, France and the UK, have ratified and declared (respectively) with respect to the Protocol, but Germany has still not done either. Bulgaria’s ratification brings the total Protocol ratifying/declaring states to eight (see the Council of the EU’s page listing signatories and ratifiers to the Protocol), so a few more will be required, alongside Germany, for the Protocol to come into effect.
Impact on the speed at which the UPC can be established
The Protocol must be fully ratified before judges can be employed and local divisions etc fully established; basically all the ground work that needs to be in place before the actual UPC court can get started cannot start without the Protocol’s full ratification. However, signatory states cannot ratify the Protocol unless they have already ratified the UPCA or declared themselves ready to do so.
In a recently reported comment, the Chairman of the UPC Preparatory Committee claimed that there would need to be 6 to 8 months of preparation time from full ratification of the Protocol, before the UPC could be fully functional. This suggests that were Germany to declare itself ready to ratify the UPCA and thus was then able to ratify the Protocol, there would need to be a delay between it ratifying the Protocol and actually ratifying the UPCA, since once fully ratified the UPCA will come into force, i.e. the UPC will be established (and unitary patents will be available also since the Unitary Patent Regulation would also come into force), on the first day of the fourth month after the month in which the German ratification occurs, and the implication of the Preparatory Committee Chair’s comment is that this would not allow sufficient time for the court to be ready.
In summary, the UPC is still some way off; in fact at least 6-8 months away, even once Germany announces its readiness to ratify. The timings suggest that the UPC may be unlikely to be operational before the UK leaves the EU unless German ratification of the Protocol occurs shortly.