European Patent Litigators Association

Update on the UPC Provisional Application Phase

Austria’s first chamber of parliament recently approved of the ‘provisional protocol’ for the Unified Patent Court Agreement. Now only approval of the second chamber of the parliament and deposit of the instrument of ratification is needed to initiate the startup phase of the Unified Patent Court. This could only take a few weeks, and initiation of the startup phase is expected before the end of 2021. If the startup phase proceeds as planned and clears a last safety catch, the Unified Patent Court may open its doors early 2023.

As illustrated schematically below, to start up the Unified Patent Court (UPC), currently only one additional participating member state’s ratification of the Provisional Application Phase (PAP) Protocol of the Unified Patent Court Agreement (UPCA) is needed. The deposit of the last remaining ratification of the PAP-Protocol shall trigger the start of the provisional application phase. This phase is a final phase of setting up the UPC, and includes e.g. legal and organizational establishment of the court, setting its budget, stress testing its IT systems, and finalization of recruitment of its judges. The Preparatory Committee for the UPC currently estimates that the PAP shall take about eight to ten months.

When the preparatory work has progressed sufficiently and the participating member states are confident that the UPC can start in an orderly manner, the last outstanding instrument of ratification of the UPCA shall be deposited by Germany. Once this ‘safety catch’ has been cleared, the UPCA shall enter into force on the first day of the fourth month following the deposit.

Once the UPCA enters into force, the UPC shall start its work and shall be available to the users of the European patent system. Currently, it is estimated that the UPC may open its doors early 2023. Once fully up and running, the UPC shall be a single patent court that covers up to 24 countries of the European Union.

For details and more information visit the website of the Unified Patent Court

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European Patent Litigators Association