UPC - Draft ratification bill and status of preparations in Germany

24 February 2017

Dr. Christopher Maierhöfer

Last week the German government passed on a draft bill needed for the German ratification of the UPC Agreement (UPCA) to the federal parliament (Bundestag). According to the official agenda of the Bundestag, the final reading and passing of the bill is scheduled for March 9. The bill will then have to be confirmed by the Bundesrat (the second parliamentary chamber representing the German federal states) which is however considered a mere formality, so that the legislative preparations for the German ratification could be finalized by May.

However, it is expected that Germany will wait for the UK to ratify the UPCA first before finalizing the ratification. In order for the UPCA to enter into force, 13 member states, including France, UK and Germany have to ratify the Agreement. Only the ratification of the UK and Germany are missing at this stage. The German government has always declared its right to be the last to ratify in order to have all cards in their hand until the last moment – a strategy that will probably be reaffirmed in view of the upcoming Brexit negotiations. In order to stick to the currently envisaged start date of the UPC on December 1, 2017, the German ratification needs to be deposited before the end of August.

The explanatory notes to the draft bill contain some interesting statements regarding the expected number of cases to be handled by the UPC in the first few years. According to these estimates provided by the German ministry of Justice, it is expected that the UPC will reach its full capacity of 1,800 to 2,200 cases per year after 10 years of operation. For the first year of the UPC, the ministry is calculating that there will be around 180 cases. However, the notes acknowledge that the caseload is hard to predict, in particular during the transitional period of 7 years in which it will be possible to “opt-out” traditional EP patents from the jurisdiction of the UPC.

In the meantime, preparations for the four designated German local chambers are in full swing and the respective locations have been confirmed. Likely driven by cost and efficiency considerations, the chambers will move into existing court buildings as co-tenants. Also the Munich branch of the Central Division will be located in a part of the building of the Federal Patent Court that has been designated for the UPC.