December 2017 is the new target date for the Unified Patent Court (UPC) to open to receive cases, according to a January 16, 2017 notice from the Preparatory Committee.
With the United Kingdom (UK) having announced that it will ratify the European Unitary Patent Agreement (UPCA), the major remaining steps to implement the European Unitary Patent (UP) and Unified Patent Court (UPC) will be:
- the UK and Germany will give final parliamentary approval of the UPCA and the Protocol on provisional application of the UPCA, probably by April or May 2017;
- the Court will come into existence for completion of preparations pursuant to that protocol in May, and will complete its hiring of judges and staff, and other necessary steps about six months before opening to receive cases;
- patent owners wishing to opt-out of the UPC for their conventional European Patents will be able to do so starting in September, 2017; and,
- assuming that everything proceeds smoothly in approximately the first two months under that protocol, Germany will deposit the final required ratification, which will trigger the formal opening of the Court on the first day of the fourth month after that deposit. The EPO will begin granting UPs on the same date.
The EU regulation permitting registration of patent owners' requests for a new European Patent to have unitary effect, will come into effect on the date of entry into force of the UPCA. The EPO has adopted implementing rules and declared that it is ready for the start of the UP granting system.
Looking beyond 2017, the majority view is that the UK will probably be able to stay in the UPC after leaving the EU (Brexit), which will occur no sooner than 2019. It appears very unlikely that an owner electing a UP pre-Brexit will end up with anything less than conventional EP rights for its patent in the UK and its UP rights in the other participating states post-Brexit. Future updates will discuss how the UK may continue as a member of the UPC and in the UP system.
Patent owners who may be concerned about risks in the UPC or involving a UP will be able to obtain conventional, nationally validated European Patents, as in the past, and will be able to opt-out of the UPC for such EPs in at least the first seven years of the UPC. Having opted-out, if they wish, they will be able to opt-into the UPC again. A future update will discuss the opt-out procedure and the necessary due diligence.
Click here to read a further discussion of (1) Parliamentary Approval in the UK and Germany, and (2) the Protocol on Provisional Application of the UPCA.