Preparing for change
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.
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