UPC Groundhog Day?

December 2017

In January 2017, we posted the news:  “The UPC to be operational by December 2017”. It’s now December 2017, and for reasons we couldn’t have foreseen in January, it feels the UPC is no nearer to being operational than it was back then.

In late November 2017, the Council of the EU produced a document summarising the situation in participating Member States regarding ratification of the Agreement on a Unified Patent Court (UPCA) and signature, ratification or declaration to be bound by the protocol on provisional application (PPA).  It can be found here. Whilst a lot of progress has been made during 2017, the document acknowledges that “DE and UK must deposit their instrument of ratification of the UPCA before it can enter into force (Article 89 UPCA)”. Since the document was published, the UK has taken procedural steps in order to be able to ratify – both the Scottish and Westminster Parliaments have agreed legislation which means steps towards ratification can continue. However, due to a case currently pending in the German Federal Constitutional Court (FCC) concerning the law passed by the German Parliament on the implementation of the UPCA, German ratification is on hold until this is resolved.

Many had thought the UPC would be ready to open its doors by December 2017, but that obviously isn’t the case. Although a start date during 2018 looks possible, but with complications around the UK formally leaving the EU in early 2019, still nothing is certain. And post that the UPC “could be operational by December 2018” just seems too much like Groundhog Day!