Latest News on Unified Patent Court Agreement and Court Divisions

Authors: Renata Andužienė, Patent Consultant at METIDA, dr. Jacekas Antulis, Associated Partner, Head of the Patent Division at METIDA

dart-454188_640Although the unitary patent is unlikely to become operational until 2017, the preparation for it continues in Europe. After the failure of the Spanish challenge this year, there are no further substantial obstacles in the way of the establishment of the new system and for the sufficient ratifications of  UPC Agreement (UPCA) and setting up the local, regional and central courts.

Eight countries have already ratified the UPCA

For the unitary patent system to come into effect it is required 13 states (including France, Germany, UK) to complete their ratification of the UPCA and to deposit their instruments of ratification in Brussels. To date, as many as eight countries: Austria, France, Sweden, Belgium, Denmark, Malta, and Luxembourg have ratified the UPCA and the newest state is Portugal. Portugal still has to deposit its instrument of ratification with the Council of the EU.

Now only 5 countries (including Germany and UK) must ratify the UPCA in order for it to come into force. In Germany, a draft law for ratification has still not been proposed to the Parliament, but no serious obstacles are expected. It is deemed that the bill should be ready in the second half of 2015. However it is some uncertainty with the UK: the British Government has decided to organize a referendum in 2017 on the UK’s membership of the EU.  Despite this fact, the UK Intellectual Property Office has recently confirmed that preparations for British ratification of the UPCA will continue. The UK ratification process is expected to be completed by Spring 2016.

Other countries considering ratification

It is important to mention that another five countries are seriously considering the ratification. The Ministry of Justice of Estonia has made a draft law for ratification, which might still take place in 2015 but more likely at the beginning of 2016. In Finland the instrument of ratification is expected to be deposited at the end of this year or, at the latest, at the beginning of 2016. The general opinion in Finland is in favour of ratification. Recently, after the CJEU dismissal of the last of several legal challenges to the Unitary Patent package which had been raised by Spain, Italy has changed it‘s possition and filed a formal request with the European Commission (EC) to participate in the enhanced cooperation for the creation of unitary patent protection. The EC has four months to decide on the request. A working document for ratification of the UPCA, which has been prepared by the Lithuanian State Patent Bureau, has been circulated in Goverment. Ratification of UPCA is expected to take place in the autumn 2015 or the spring 2016 session of parliament. In order to ratify the UPCA, the Dutch Patent Act needs to be amended. Together with the ratification act, this is treated as a package. After an online public consultation, some minor amendments were made to the proposal. The Council of Ministers approved the proposal. It is currently before the Council of State and thereafter, it will be put to Parliament.

Decisions on local, regional and central divisions

Every member state which participates in the UPC will need to decide whether to establish local divisions or participate in regional division of the UPC. However, individual states will have to fund these courts.

The five largest states (UK, France, Germany Italy, the Netherlands) and other seven (Austria, Belgium, Denmark,  Finland, Hungary, Ireland,  Slovak Republic) are expected to have local divisions. While the UK plans to have a local division in London, it is planned to to have even four local divisions in Germany: Munich, Düsseldorf, Mannheim and Hamburg. Munich will most likely have English as the second language of proceedings (besides German). However, it is thus not clear yet, whether all local divisions will accept English. France intends to establish a local division in Paris. The languages of proceedings most likely will be French and English.

More than a year ago Sweden, Lithuania, Estonia and Latvia announced their intention to set up a regional division (called the „Nordic-Baltic“ division) seated in Stockholm. This will enter into force when two of these countries, including at least Sweden, will ratify the UPC. The language of the proceedings will be English with interpretation to and from the national languages. Furthermore, regarding Slovenia, a tripartite expert meeting with respect to forming a potential regional division was held in 2014 with the representatives of Hungary and Croatia, which expressed their interest for partnership in the regional division. Croatia would join such regional division subsequently, following the signing and ratification of the UPCA.  And what about the other countries?  Actually, there are some countries which have not made proposals for local ir regional divisions at all, and such countries are: Cyprus, Czech Republic, Greece, Portugal.

It is important to stress that there is no such requirement for each member state to have its own local division. For example, Luxembourg and Malta have declared that they do not intend to open local divisions. This means that all cases will be brought to the central division.

In summary, as the substantial progress has been made towards launching the European unitary patent system and the UPC in 2014 and 2015, late 2016 or early 2017 looks like a realistic date for the implementation date for the unitary patent and UPC, although the expected date was originally scheduled for April 2014.

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