What is the current situation with the UPC?

Once Austria had submitted its instrument of ratification of the Protocol to the Agreement on a Unified Patent Court on provisional application to the Council of the European Union on 18 January 2022, the required minimum number of ratifications had been reached and the Provisional Application Phase of the Unified Patent Court Agreement started on 19 January 2022. The PAP is required to allow the necessary administrative arrangement (appointment of judges, IT infrastructure, etc.) to be put in place prior to the actual start of the UPC.

Once these preparations are well under way, the Sunrise Period will be initiated. It starts when the thirteenth Contracting Member State of the UPC deposits its instrument of ratification or accession of the UPC Agreement to the Council of the European Union (the thirteen Member States must include at least France and Germany). The required minimum number of Member States (including France and Germany) have already ratified the UPC Agreement. However, Germany has not yet deposited its instrument of ratification to the Council of the European Union. It acts as a “gate keeper” and will only do so once the Member States agree that the preparations for the commencement of the UPC are close to completion.

At the commencement of the Sunrise Period, the “Case Management System (“CMS”) of the UPC will open.  This will an Opt-Out Register thereby providing patent holders who wish to opt-out their existing European patents the opportunity to do so before the commencement of the UPC.

The UPC Agreement will therefore enter into force on the first day of the fourth month after Germany has deposited its instrument of ratification. Accordingly, the Sunrise Period will provide a minimum period of three months for patent holders to decide to opt-out any of their existing European patents. As of October 2022, the commencement of the UPC is expected on April 1st 2023 with the Sunrise period beginning on January 1st 2023.