Three Developments Delay UPC Agreement & Unitary Patent


Co-authored by: Herbert Kunz

Three announcements in the past week point to delays in implementing the European Unified Patent Court and the Unitary Patent system, although none of the developments appear to be fatal. The sunrise period for organizing the court, planned to begin in June pursuant to the Protocol on Preliminary Application (PPA), has been postponed.

Although doubts persist in some quarters regarding whether the UK will ratify the UPC Agreement, UK representatives have recently reassured the EU states that they will ratify. The Agreement and the PPA have already been approved by the UK Parliament. However, Parliament must still approve a statutory instrument approving the Protocol on Privileges and Immunities (PPI). In view of the Conservative Party's loss of a majority in the UK snap election on June 8, it is doubtful whether the PPI could be approved and the UK could give notice of readiness to deposit its ratification before the summer vacation beginning July 21st.

Until this week, the principal obstacle appeared to be that several of the smaller states, which have approved the UPC Agreement, have not yet approved the PPA. As a result, on June 7, the UPC Preparatory Committee posted a notice that the sunrise period could not begin in June as planned, judicial interviews will have to be deferred until after summer vacations and the UPC will not be able to open on December 1, 2017, as planned.

It has always been planned that Germany would be the last state to ratify. That would control the start date. All of the necessary legislation has passed the German Parliament. On June 12th, however, the Office of the German President announced that a private case has been filed in the Constitutional Court, attacking the UPC Agreement's constitutionality. As a result, final approval of the Agreement has been postponed pending the court proceedings.