Under the terms of the UPCA, the Agreement can only come into effect once at least 13 contracting states have ratified, but these must include France, Germany and the UK (if all other ratifications are in place prior to Brexit) or Italy (if post-Brexit). France and Italy have already ratified, as have Austria, Belgium, Bulgaria, Denmark, Estonia, Luxembourg, Malta, the Netherlands, Portugal, Sweden and Finland. Once all the required ratifications are in place the UPC can commence on the first day of the fourth month after the last required ratification.
What is causing the delay?
As we have reported on this blog and in our UPC Hub on our firm website, the timetable for the UPC appears to be slipping, due not only to delays by the UK, in part due to the recent general election, but also because of the challenge to German ratification mounted in the German Constitutional Court mentioned above.
One other key ingredient is also missing: there have also been delays to the Protocol on Provisional Application which is required to be ratified by contracting states in order to allow the administrative preparations for the courts, including the appointment of judges, to go ahead in order for the UPC to be ready immediately the UPC Agreement comes into force.
The UPC Preparatory Committee have withdrawn their 1 December 2017 start date and are as yet unable to confirm any further dates.
The delay to German ratification has been caused by a complaint being filed at the German Constitutional Court which led to the Court asking the German parliament to delay signature of legislation that would have progressed the UPCA’s ratification by Germany.
The UK put some of the UPC ratification legislation before Parliament in June. The Unified Patent Court (Immunities and Privileges) Order 2017 was laid before Parliament on 26 June 2017 – see the explanatory memorandum here. This Order implements the Protocol on Privileges and Immunities of the UPC (the Protocol) and confers legal status in the UK on the United Patent Court and privileges and immunities on the Court, its judges and staff, under the International Organisations Act 1968, which allows the grant of certain immunities and privileges to the international organisation and its officers and employees. This Order (and an equivalent measure in the Scottish Parliament) needs to be passed before the UK can ratify the Protocol as well as the UPC Agreement itself. However, both Houses of Parliament will be required to debate the measure before approving it and it will also need the approval of the Privy Council.
Ireland’s ratification is not a pre-requisite for the UPCA to come into effect (now that there are already sufficient ratifiers) but its process is worthy of note as it requires a referendum. A recent announcement suggests this will happen at some point in the next two years.