Unified Patent Court (UPC) – Finally on its way!
Yesterday, Austria deposited its instrument of ratification of the Protocol on Provisional Application of the UPC Agreement (UPCA). This means that the Protocol has now entered into force, and that the Provisional Application Phase (“PAP”) can start. During the PAP, the last part of the preparatory work to set up the Court will be performed, including the recruitment of judges.
Importantly, this marks the birth of the Unified Patent Court. The road to the UPC has been very long and the entry into force has been delayed several times both due to Brexit and due to pending complaints against the ratification bill of the UPCA before the German Federal Constitutional Court. Now finally, it seems the users of the European patent system will have a new Court and a new patent (the Unitary Patent) to turn to. However, this new system will also force the users of the European patent system to consider alternative/new patent strategies for their existing patent portfolios, and for new patent filings. There is a possibility to opt-out from the exclusive jurisdiction of the UPC during a period of at least 7 years from its entry into force, but in this regard pro-active strategic decisions and actions need to be taken.
It is expected that the PAP will last about eight months including as a final step Germany ratifying the UPCA after which (after 3 months) the UPC will open its doors.