In step by faltering step, the Unified Patent Court Agreement (UPCA) staggers towards probable entry into force.
For the Unified Patent Court to come into force, the UPCA needs to be ratified by at least 13 countries, which must include the three key countries – UK, France, and Germany.
As March 2017, the UPCA has been ratified by 12 countries (including France), the latest being Italy and more are expected to ratify soon.
The UPCA did not provide sufficient legal basis for the Court to come into existence for administrative matters prior to opening for business as a Court, and so to ease administration a Protocol on Provisional Application (PPA) was agreed as aiming to provide such early opening.
For the public, the principal effect of the PPA would be to permit opt-outs from the competence of the Court to be filed before the Court opens for litigation business. For the Court the PPA will permit staff (including judges!) to be recruited before the Court opens for litigation business. The PPA will come into force the day after 13 Signatory States of the UPCA (including Germany, France and the United Kingdom), have:-
- either ratified, or informed the depositary that they have received parliamentary approval to ratify, the Agreement on a Unified Patent Court; and
- either signed, ratified, or otherwise declared themselves bound by the PPA.
So far, fewer countries have acceded to the PPA than to the UPCA, but this seems a lower commitment to make than acceding to the UPCA (some have acceded before ratifying the UPCA).
The Preparatory Committee for the Court issued a notice concerning timetabling which provisionally aims for the “opt-out” provisions becoming effective in September 2017, and the Court becoming operational in December 2017.
However, this timetable is conditional and relies upon there being necessary ratifications to both the UPCA, and accessions to the Protocol on Provisional Application (PPA).
The two remaining states who must ratify the UPCA for the UPC to come into force are UK and Germany.
The UK completed all the primary legislation necessary to proceed to ratification early last year: all that remains is for them to ratify a Protocol on Privileges and Immunities (PPI) for the Court, this has completed the parliamentary stage concerning the ratification of the treaty. All that remains are two implementing orders being presented to the Westminster and Scottish Parliaments to put this into effect.
The UK thus looks ready to ratify in the near future.
Germany’s ratification process is now underway, and it looks as though they may be the last of the key countries to ratify, and so trigger the opening of the Court.
The Preparatory Committee’s timetable looks tight, but only achievable if more countries sign up soon to the PPA.
The day the Court opens, is the day that unitary patents can start to be granted. Although the opening of a new court is exciting: to most rights holders what is more exciting is the prospect of availability of a unitary patent enabling cost-effective protection for a market having a combined GDP of more than $15 trillion (assuming only that Germany and UK add to the current list of ratifications).