Setting up of the technical and infrastructural preparations for the UPC: A further step towards the entry into force of the UPC Agreement
The Protocol to the Agreement on a Unified Patent Court on provisional application (PPA) entered into force on January 19th, 2022, following the deposit of the instrument of ratification by Austria on the day before. Austria has been the 13th member state needed for it to enter into force so that final preparations for the Unified Patent Court could start.
It is deemed that the PPA may last at least eight months. During this period the technical and infrastructural preparation for the UPC must be completed such as the recruitment of the judges, the IT management system, etc.
When the member states consider that preparations are sufficiently advanced to be completed by a certain date, Germany is expected to deposit its ratification instrument concerning the Agreement on a Unified Patent Court (UPCA). This would trigger a period of 4 months after which the Unified Patent Court and the Unitary Patent system would start.
The EPO has already announced that, with a view to supporting patent applicants in an early uptake of the Unitary Patent, it will introduce transitional measures with respect to European patent applications having reached the final phase of the granting procedure. These measures will be made available ahead of the entry into force of the Unitary Patent system until the end of the period of the provisional application.
Thus, it will be possible to file early requests for unitary effect for those patents eligible, as well as to file a request for a delay in issuing the decision to grant a European patent after dispatch of a communication under rule 71(3) EPC and before approving the text intended for granting for those patents that would be granted before the start of the new system.
Still to be known is how the necessary transfer of the seat’s functions allocated to London before Brexit will be resolved. Whether the UPC can become operational at the end of the year will be seen in the coming months. We will continue to follow developments closely.