Provisional Application of UPC Agreement Goes Into Effect

On 18 January 2022, the Austrian government deposited its instrument of ratification of the Protocol on Provisional Application of the Unified Patent Court. Austria’s formal ratification of the Protocol means that sufficient member states have now ratified the Protocol, and thus the Protocol has now come into effect.

Ratification of the Protocol is a key step in the creation of the Unified Patent Court because it allows the Preparatory Committee to interview and appoint judges to the Court on a preliminary basis so that the Unified Patent Court itself can come into existence. The exact date when the Court will open is still uncertain. However, the Preparatory Committee for the Unified Patent Court has previously indicated that they expected the interviewing, training and appointment of judges to the Court would take around 8 or 9 months. In practice, now that provisional application has been approved, the Unified Patent Court is likely to come into existence at the end of 2022 or the beginning of 2023.

The establishment of the Unified Patent Court has been a tortuous affair with its opening date being delayed, both by Brexit and two constitutional challenges in Germany. However, following a ruling by the German constitutional court (Bundesverfassungsgericht) last July, the Court was finally given a green light.  Now that the formalities for provisional application of the court agreement have been completed, the realization of the new court is a matter of time.

When the Court comes into existence, it will provide a new forum for enforcing European patents granted by the European patent office and in force in Germany, France, Italy, Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, Latvia, Luxembourg, Malta, Netherlands, Portugal, Slovenia and Sweden. Further European member states are expected to ratify the agreement in the coming months. It will also provide a forum for enforcing Unified patents covering all the above jurisdictions which the European patent office will start to grant as soon as the Court opens.

Given the importance of the new Court we will be providing updates on developments and the strategic considerations that patentees will need to consider over the upcoming months.

For further information, please do not hesitate to contact your usual Finnegan attorney.