UP/UPC Munich Summit Positive on Ratification

07 July 2017

Five Bird & Bird lawyers from four offices joined around 300 others who attended the UP/UPC Conference by Premier Cercle hosted by the EPO on 5th July. Keynote speak Margot Fröhlinger described in positive terms the progress towards the UP/UPC system coming into operation in 2018. Fröhlinger was unconcerned by the latest delay to ratification in Germany or the situation with the UK.

Five panel sessions were held over the course of the day. During the first session reports from the Preparatory Committee described the advanced state of readiness of much of the system. Sir Robin Jacob and Judge Huydecoper discussed the judicial recruitment process, citing the high calibre of the candidates but noting also that the process for finalising selection through interview would be time consuming and could impact slightly on the system commencing operation. Sir Robin discussed his view on the role of technical judges, explaining that these were to act as an 'interpreter' between the technical subject matter and the legal judges. He also remarked on the linguistic capabilities of the judicial candidates, which had been a factor in shortlisting candidates.

The second session reported on the progress in France, the UK, Germany and Luxembourg – the countries who are hosting part of the Central Division or the Court of Appeal. France and Luxembourg reported a state or near-readiness for their facilities as did the UK and Germany. These latter also reported on the legal process of ratification. In the UK the government has now begun the remaining legislative steps required for ratification that had been delayed by the general election but these will not be completed until the autumn. In Germany, there is no official information available about the nature of the constitutional complaint made about the ratification instrument approved by the German parliament nor any confirmation of when the challenge would be resolved. Audience comments suggested the complaint might be resolved in a few months, at least in respect of any preliminary relief.

A panel of judges from Germany, the UK, the Netherlands and Spain discussed four points about the UPC system: 'local flavour', jurisdiction during the transitional phase, appeals and discretion in granting injunctions. The discussion, lively at times, revealed the richness of legal diversity across the UPC region.

Industry representatives described their organisation's approach to the UP/UPC in the fourth session. Representatives from Bayer, Fractus, Electrolux, Philips and Air Liquide described their interest in the UP/UPC system and strategy for how best to engage with the system for their business. All speakers spoke with enthusiasm about the system and of their organisation's intentions to participate in the system with at least part of their patent portfolio. Views were expressed that the system should evolve to be not only one of high quality but one that afforded European businesses with an additional competitive edge in a global market.

Closing the day, a panel of speakers from the EPO, the IT service provider for the UPC and representatives of the UK and French patent attorney profession discussed the practicalities of the system for obtaining a UP and for opting out. The EPO has introduced new information in its register to reflect the request for a registration of UPs and to show the countries covered by any particular UP. A new kind code (or suffix) C added to patent numbers will also allow UPs to be found easily by searching. The UPC case management system, which also registers opt-outs, is being further improved ahead of the expected launch of the sunrise period, including further work on security and authentication. The patent attorney professionals discussed aspects of the UP system that require attention from practitioners, including for example, the relatively short deadline for requesting unitary effect.

Overall, while some concerns were expressed about the timeline and ratification procedure, the mood of the conference was that the UP/UPC system was finally within touching distance and that the system would see use by industry upon launch.