8 September 2021
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The next hurdle in the way of the Unified Patent Court (UPC) opening its doors has now been cleared. Sooner than expected, the German Federal Constitutional Court ruled that two applications for interim injunctions against ratification of the UPC Agreement which were filed at the end of last year were inadmissible. This paved the way for the German President to sign the ratification bill on 7 August 2021. The next step required is ratification by two further contracting states, in addition to Germany, and is currently expected this autumn. This will start the period of provisional application and will allow completion of the final preparatory work for the UPC, including the recruitment of judges and selection of the president of the Court of Appeal based in Luxembourg. Completion of IT systems and agreement on the UPC’s budget are all also needed, none of which are trivial matters. The period of provisional application is currently expected to last about 8 months but there is no fixed time limit and a longer period is possible. Once the preparatory work is complete, or close to complete, Germany is expected to deposit its instrument of ratification which will start the three-month period until the UPC opens its doors. During the period of provisional application, patent owners will also be able to opt out their existing European patents and applications from the jurisdiction of the UPC.

The process of recruiting judges was previously commenced in 2014. At the time it was reported that there were high numbers of well-qualified applicants for both technically and legally qualified judges, although it is important to remember that most applicants which came from the UK at the time will no longer be eligible to apply. This is a loss for the UPC, as the UK was among the contracting states with the highest number of IP cases and thus was able to offer judges with strong IP experience.  In view of these changes and the elapsed time, it seems likely that the recruitment process will need to start afresh. The training centre for UPC judges previously set up in Budapest will also need to be revived or perhaps moved in view of Hungary having not yet ratified the UPC Agreement.

The question of where the Central Division of the UPC responsible for chemical and pharmaceutical cases should be located in view of the UK’s withdrawal also remains to be decided. A division of the relevant cases between the Central Division’s locations in Munich and Paris is possible, although Milan has also positioned itself to take over from London.

The Preparatory Committee’s projection for the UPC starting its operations is mid-2022 but given the work that still needs to be completed this currently seems optimistic.

Read more about this on the Unified Patent Court's website.

Tanis is a Partner and Patent Attorney at Mewburn Ellis. She is a member of our life sciences patent team. Tanis has over 10 years’ experience drafting and prosecuting patent applications in the pharmaceutical, biotechnology and food & beverage sectors. She works with a wide range of clients on invention capture and filing strategy, as well as global portfolio management. Her clients include SMEs, Universities (in the UK and elsewhere), domestic and overseas multi-national companies, as well as start-ups. Tanis visits Japan several times a year and handles large European portfolios for a number of Japanese companies.

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