UPC Agreement Provisional Application Phase and What’s Next

July 2017

The protocol allows some parts of the UPC Agreement to be applied provisionally, which means that final decisions can be made on the practical set up of the Court, for example, the recruitment of judges. Provisional application also means the start of operation of the UPC's formal governing bodies. 

The UK has made one reservation that in relation to Article 1 of the Protocol to the Agreement on a Unified Patent Court on provisional application: "The United Kingdom of Great Britain and Northern Ireland shall not provisionally apply Article 4* of the Agreement on a Unified Patent Court."

*ARTICLE 4 Legal status (1) The Court shall have legal personality in each Contracting Member State and shall enjoy the most extensive legal capacity accorded to legal persons under the national law of that State. (2) The Court shall be represented by the President of the Court of Appeal who shall be elected in accordance with the Statute.

The reasons for this reservation aren’t clear, but we suspect it could be Brexit related.

UPC CMS

A note from the IT Working Group Coordinator Dario Pizzolante has been posted on the UPC Court pages; the IT Working Group is confident that key IT arrangements will be finalized by the start of the Sunrise period currently forecast for early 2018.  Users are keen to fully understand how the opt-out and CMS will work, in order to ascertain the time and complexity the opt out process will involve.

Timescales

Various rumours on timescales are doing the rounds.  The most substantiated come from a recent conference where Margot Fröhlinger suggested that the most likely timetable (assuming the German challenge does indeed fail) is for the start of the Provisional Application Phase in late 2017, the start of the sunrise period for opting out in early 2018, and a start date for the UPC itself in early summer 2018.