Preparing for change

How will the UPC come into force?

As the UPC is an entirely new court system, there is significant work involved in ensuring that it is ready to accept cases on day-one. To achieve a smooth start, the contracting EU MS have agreed the Protocol on the provisional application of the UPCA (“PAP-Protocol”). The PAP-Protocol allows for the establishment of the legal capacity and organisational capability of the UPC before the entry into force of the UPCA.

The Provisional Phase is now in progress (see here). The Provisional Phase allows for the finalisation of secondary legislation and Rules of Procedure, the Court filing system and IT infrastructure, financial budgets, and most importantly, the hiring of the UPC’s staff, including the appointment of approximately 45 legally-qualified judges and 50 technically-qualified judges.

The Provisional Phase is expected to last at least nine months.  Once the UPC Preparatory Committee and R-MS  are confident that the UPC infrastructure is in place, Germany will deposit its ratification of the UPCA. This will start the countdown to the official start of the UPC on the first day of the fourth month after German ratification (“Start Date”).

On the Start Date, the UPCA will come fully into effect and the associated EU Regulations (Regulations (EU) No. 1257/2012 and No. 1260/2012) will apply. The EPO Rules relating to the Unitary Patent Protection will also enter into force.

The date of deposit of the German ratification is also important for a number of pre-launch “Sunrise” periods associated with the UPC and UP protection. We expect there to be a three-month sunrise period when patentees can file “opt-outs” for existing EPs, as well as indicating that they wish to designate a UP for European patent applications proceeding to grant.

It is important that patentees allow sufficient time to adjust their patenting strategies and review their EP portfolios to ensure these are aligned to business needs ahead of the launch of the UPC.

Preparing for change

The Unified Patent Court (UPC) and a new “unitary patent” or “European patent with unitary effect” (UP) are likely to become a reality in the second half of 2022.

What is a UP?

The prosecution of European Patents will continue as before. At grant a European Patent (“EP”) will create a bundle of national rights but a new UP “designation” will become available.

What is the Unified Patent Court?

The UPC is a new common patents court with exclusive jurisdiction in respect of litigation (validity and infringement) for all EP(UPs) and non-exclusive jurisdiction over EPs validated in R-MS.

How do I opt-out of the UPC?

When the UPC comes into force, all existing and future European patents that are granted and validated in R-MS territories will become subject to the jurisdiction of the court.

Latest updates

Update on the UPC - expected timeline

The first meetings of the UPC Administrative, Budget and Advisory Committee took place at the end of February. Following these, the Advisory Committee have begun interviewing judges for the court …

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Event - 10th May 2022

HGF UPC events in Germany and Austria 2022

HGF is holding a webinar and an in-person event covering the UPC in Germany and Austria this Spring. The provisional phase of the Unified Patent Court (UPC) is now underway …

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A Step Towards A Unitary SPC?

The European Commission has recently announced a new initiative aimed at creating a single procedure for granting Supplementary Protection Certificates (SPCs)  (https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13353-Medicinal-&-plant-protection-products-single-procedure-for-the-granting-of-SPCs_en). Currently, SPCs are applied for and granted at …

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Event - 17th February 2022

HGF webinar: Looking ahead to the UPC and Unitary Patents

HGF webinar Looking ahead to the UPC and Unitary Patents is now available to watch. The patent landscape in Europe is on the brink of the most significant change in …

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Looking ahead to the UPC and Unitary Patents

On 19 January 2022, the Unified Patent Court’s (UPC) provisional application phase began. In the words of the UPC Preparatory Committee, this represented “the birth of the Unified Patent Court …

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Provisional Phase of the UPC can now begin

With the deposit on 18 January 2022 by Austria of its instrument of ratification for the Protocol on Provisional Application Period (PAP- Protocol; see here), the UPC’s Provisional Phase can …

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UPC moves one step closer to 2022 launch

The Austrian parliament has completed the legislative procedure to ratify the Protocol on the provisional application of the Agreement on a Unified Patent Court (the “Protocol”; see here). When deposited, …

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UPC – Progress on German ratification

The German Bundestag has approved the ratification bill on the Unified Patent Court Agreement. The EPO has welcomed the news, explaining that “in Germany, the UPC bill will now be submitted …

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