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Latest twists and turns in the UPC

by AIPPI UP/UPC Committee

On November 28, 2016 the UK Government confirmed that it is proceeding with preparations to ratify the Unified Patent Court Agreement. At the end of March 2017, the UK government served formal notice under Article 50 of the Lisbon Treaty to terminate the UK’s membership of the EU. This notice triggered a two-year period for negotiating a withdrawal agreement between the UK and the remaining 27 EU members states. Some had hoped that the UK would proceed to ratification of the UPCA before the start of the Brexit negotiations, but that did not happen now. Nevertheless, the ratification process of the UPCA by the UK still continues. On July 7, 2017. the UK deposited the document required to apply the Protocol to the Agreement on a Unified Patent Court on provisional application (PPA) with the depository for the UPC Agreement. Equally, an Order on the UPC Protocol on Privileges and Immunities (PPI) was laid before the UK Parliament in June 2017. The Order gives effect to the PPI and is required to ratify the UPCA and the PPI. A similar Order is to be laid for the Scottish Parliament. It is expected that this process will be started in September 2017 when Parliament will reconvene after the Summer break and key committees reform after the recent General Election. If the timetable for this process does not suffer any delays, UK ratification could occur by the end of the year.

In Germany, the parliament (Bundestag) and the Federal Council (Bundesrat) approved the ratification of the UPCA in March 2017. The PPI has been approved by the Bundestag (April 2017) and the Bundestag (June 2017).  In June 2017 it became public that in March 2017 a complaint was filed with the German Constitutional Court (Bundesverfassungsgericht) against the German ratification of the UPCA. The contents of this complaint are still unknown. As an interim measure the Bundesverfassungsgericht has requested the German President not to ratify the ratification bills until it has decided on the merits of the complaint. The President has complied, and ratification process has been suspended. The Bundesverfassungsgericht generally only takes this measure, if there are some doubts of the respective bill regading the German constitution. Even though the precise timing is unknown, the Bundesverfassungsgericht will probably decide about preliminary measures within the next few months. If the Bundesverfassungsgericht requires amendments regarding the ratification, the process could be further delayed. The Bundestag has closed its current period before the general election in September 2017, after which the Bundestag will be newly constituted. Due to the principle of discontinuity the new Bundestag could not amend the existing draft, but would have to start anew.

In Spain, the parliament adopted a non-binding motion in early March 2017, requesting the government to reconsider joining the Unitary Patent system. However, the Spanish government has made it clear that Spain will not join the UP system.

The UPC Preparatory Committee met for the last time on March 15, 2017. The recruitment of judges and testing of the IT system are ongoing. Some minor amendments of the Rules of Procedure have also been agreed. This draft has yet to be scrutinized by the European Commission on the compatibility of the Rules of Procedure with Union law and will be subject to formal adoption by the UPC Administrative Committee during Provisional Application..

The UPC Preparatory Committee had hoped that the start of the provisional application phase would commence at the end of May 2017. This period is important to allow the Court to make the necessary preparations for the entry into force. However, on  June 28, 2017, Alexander Ramsay (Chair of the UPC Preparatory Committee) acknowledged that the constitutional complaint before the German Constitutional Court made it difficult to maintain a definitive starting date for the period of provisional application. The UPC Preparatory Committee is hopeful that the complaint will be resolved quickly and that the period of provisional application can still start in Autumn 2017. In that case the UPC Committee expects the sunrise period for opt outs to start early 2018 followed by the entry into force of the UPCA. This would mean the UPC could be operational in May / June 2018 the earliest. The UPC Preparatory Committee will publish a more detailed timetable on its website as soon as the picture is clearer.