The Unified Patent Court has picked up speed again
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On 23 June 2021 the German Constitutional Court (Bundesverfassungsgericht) rejected the application for a preliminary injunction against ratification of the UPC Agreement. The grounds for the rejection made it clear that in the view of the Court the case on the merits has no merit. Germany then completed its ratification process. The ratification act was published on 12 August 2021.
The ratification process
On 27 September Germany deposited the ratification of the Protocol on Privileges and Immunities, which provides for the privileges and immunities of both the Court and its judges and staff. This protocol entered into force on 27 October, which is of course important for the appointment of judges.
On the same day Germany deposited its ratification of the Protocol on Provisional Application. When it enters into force the UPC will have legal personality in each Contracting Member State and the Preparatory Committee will be converted into the Administrative Committee. This is the Court’s highest governing body, consisting of representatives of the Contracting Member States. An important competence of this committee is the appointment of the UPC judges. In the meantime, an additional course on patent law for candidate judges has already been held. Slovenia notified the European Council that it is bound by the protocol on 15 October. Just one more ratification or notification is needed for the Protocol to enter into force, enabling the appointment of UPC judges and the finalization of the case management system, the IT system, the registries and everything else the Court needs to be operational. This is expected before the end of this year.
Germany will not yet deposit its ratification of the UPC Agreement, because the Agreement itself enters into force on the first day of the fourth month after that deposit, meaning that cases can be filed in Court as of that day. Therefore. Germany will do this just three months before the Court is really ready for business. On the day on which Germany deposits its ratification instrument the opt-out register will also go live, meaning that patentees will have three months to opt out patents from the UPC jurisdiction before the Court actually opens for business.
The EPO Select Committee
In the meantime there has been a meeting of the Select Committee on 14 October. This is the committee of the EPO Administrative Council that manages the Unitary Patent. The most important decision at that meeting was not to…
