The EPO has announced that the Austrian government has successfully completed its ratification of the Protocol to the Agreement on a Unified Patent Court on provisional application (PPA). Once this ratification is deposited with the EU Council, then the provisional application period can commence and final preparations can be made for the arrival of the UPC, with the knowledge that its commencement is assured. The UPC Preparatory Committee has estimated that this preparation period would need to last around 8 months, so the UPC could start around 8 months from Austria’s deposit (depending of course on when Germany deposits its ratification of the UPC Agreement (UPCA) itself – see below).

Austria would be the thirteenth participating Member State of the UPC to approve the PPA, which would be a sufficient number for the PPA to enter into force. As we mentioned in our post of 25 November, the Chairman of the UPC Preparatory Committee has already been given a mandate to organise a signing ceremony of the Declaration relating to the start of the provisional application period, so any further delay in the process looks unlikely.

Once the provisional application period starts, the UPC Preparatory Committee has estimated that it would need to run for around 8 months in order to allow the preparations for the UPC to be completed. These include the making ready of the various court sites and the finalisation of the IT system, as well as the employment of legal and technical judges.

If the deposit of Austria’s ratification of the PAP were to be made this month, and the UPC Preparatory Committee’s provisional application period estimates stand, then the UPC would start operating in September this year – though it could be earlier (or later) if it turned out that the necessary preparations took less (or more) time than the UPC Preparatory Committee currently envisages.

The deposit of Germany’s instrument of ratification of the UPCA itself, is of course the final step needed to trigger the time period set out in the UPCA for the UPC’s commencement (it will start operating on the first day of the 4th month after the month in which Germany’s ratification is deposited). The UPC Preparatory Committee has confirmed that Germany’s deposit will not occur until it is clear that the practical arrangements for the UPC will be ready in time.

About 3 months prior to the UPC start date (likely to be shortly after Germany deposits its UPCA ratification) a sunrise period will commence, during which current EPs and EP applications can be opted-out of the jurisdiction of the UPC in advance of it coming into operation. For more on this and how the UPC will work – see our UPC Hub www.hsf.com/upc.

Our fully integrated, market leading European patent litigation team is ready to advise on all aspects of the practical and strategic issues which you should be considering in preparation for the UPC – please contact us for further information.

Sebastian Moore
Sebastian Moore
Partner, London/ Milan
+44 207 466 2801

Ina vom Feld
Ina vom Feld
Partner, Dusseldorf
+49 211 975 59091

Laura Orlando
Laura Orlando
Partner, Milan
+39 02 3602 1386
Frederic Chevallier
Frederic Chevallier
Partner, France
+33 1 5357 1360
Andrew Moir
Andrew Moir
Partner, London
+44 20 7466 2773
Jonathan Turnbull
Jonathan Turnbull
Partner, London
Pietro Pouche
Pietro Pouche
Partner, Milan
+39 02 3602 1394
Rachel Montagnon
Rachel Montagnon
Professional Support Consultant, IP
+44 20 7466 2217
Andrew Wells
Andrew Wells
Senior Associate, London
+44 20 7466 2929
Emily Bottle
Emily Bottle
Senior Associate, London/Milan
+39 02 3602 1402