UPC Update (June 2017)

By: Francesca Giovannini

As mentioned in Osha Liang’s previous newsletters, the ratification process of the Unified Patent Court (UPC) Agreement has not been completed yet because two of the mandatory participating states—namely the UK and Germany—have yet to conclude their ratification process for the UPC to operate.

In addition to the uncertainties generated by the Brexit vote, further doubts have been cast upon imminent operation of the UPC despite the British-declared intention to ratify the Agreement after the June snap elections in Great Britain, which resulted in a hung parliament. It is still unclear when a government will be fully operational and whether another election will have to be called within months.

Recently, the German press announced that the German Supreme Court has asked the German president to delay signing the UPC bills due to a pending constitutional complaint filed by a private person against the bills for infringing the German Constitution. It is still unclear whether the complaint will result in a delay of a few weeks or months.

For the time being, the UPC Preparatory Committee has communicated two changes to its plan. Firstly, since the required number of protocol deposits for provisional application required to allow interviews for the recruitment process of UPC judges to begin has not been received yet, interviews with the candidates have been postponed from the summer to the autumn of 2017. Secondly, and most importantly, due to some delays with these procedures, the UPC Preparatory Committee announced that the previously stated target date for the entry into operation of the UPC, envisaged for December 2017, cannot be maintained.

At this point, it is difficult to estimate when the so called “sunrise period” will start. This period gives the possibility of opting-out of European patents/applications from the exclusive jurisdiction of the UPC before the UPC becomes operational.

We will communicate the new possible target date for the entry into force of the UPC Agreement and, as a consequence, the new earliest opt-out date as soon as the situation becomes clearer.