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Latest News

23 November 2017 - EU Competitiveness Council to review Current Status of the Unitary Patent and Unified Patent Court on 30 November

The Council of the European has published a note, from the Presidency to the Council, entitled “Unitary Patent and Unified Patent Court - Information from the Presidency on the state of play”.

The note relates to the upcoming meeting of the Competitiveness Council on 30 November, and explains as follows:

“The Presidency will give an overview of the status quo concerning the operationalisation of the Unified Patent Court and the Unitary Patent. Thereafter, the floor will be opened for any further information by Member States. All Member States which have not yet ratified the UPCA and/or joined its provisional application, but are in a position to do so within a foreseeable period of time, are invited and encouraged to briefly present their state of play.”

Those who have been following the UPC closely will be aware that only two further signatories are required to ratify the UPC Agreement and deposit their instruments of ratification before it can take effect: Germany and the United Kingdom. However, in both instances the process appears to have run into delays; the former owing to a constitutional challenge and the latter to Brexit. It is unclear whether these two, crucial, member states will consider themselves to be “in a position to [ratify] within a foreseeable period of time” and therefore accept the Presidency’s invitation, but those of us seeking clarity hope that they will.

We will be reporting on the meeting once it has happened, so stay tuned for an update here on the Allen & Overy UPC Microsite.

8 September 2017 – German Constitutional Court will delay UPC for some time but other countries are hopeful

In March 2017, a constitutional complaint was filed in Germany – see post of 27 June below. Many stakeholders have been speculating on the grounds for this constitutional complaint. Now, the German Federal Constitutional Court has disclosed the main line of argumentation. First, the complaint asserts that the ratification process did not comply with the necessary two-third majority vote in both chambers of the German legislature (the “Bundestag” and the “Bundesrat”) when sovereign rights are transferred. The Bundestag voted for the bill for ratifying the UPC Agreement with a simple majority. This argument may be related to the fact that the Bundestag voted very late at night, with only few of its members present. Second, the complaint argues that the UPC violates fundamental democratic principles which the German Constitution prescribes. Considering the complexity of the questions involving substantive constitutional law as well as EU law, this constitutional complaint may very well hold up the German ratification process for a considerable amount of time.

Read more here.

In the meantime, both Estonia and Lithuania have ratified the UPC Agreement in August. This makes them the 13th and 14th country to ratify, joining Austria, Belgium, Bulgaria, Denmark, Finland, France, Italy, Luxembourg, Malta, the Netherlands, Portugal and Sweden. Ratification is required by 13 member states (including France, Germany and the UK which are mandatory jurisdictions) before the UPC system comes into effect.

The next step in the UK is the approval of two statutory instruments to implement the Protocol on Privileges and Immunities, one by each of the Westminster and Scottish parliaments. Drafts have been laid before both parliaments and will now proceed through the relevant committees according to the affirmative resolution procedure. The timeline for the progress of the Westminster statutory instrument is currently unclear, but the Scottish equivalent must have passed the committee stage by 29 October 2017.

For more information:
Council website on ratification progress

6 July 2017 - UK one step closer to ratifying the UPC Agreement

On 6 July 2017, the UK deposited with the General Secretariat of the Council of the European Union (the depositary) the document required to apply the Protocol to the Agreement on a Unified Patent Court on provisional application (the PPA). This provides a fairly strong indication that the UK does not intend to delay formal ratification of the Agreement on a Unified Patent Court (the UPC Agreement).

The PPA allows for a provisional application phase prior to the UPC Agreement itself coming fully into force. The PPA concerns only the institutional, organisational, and financial provisions of the UPC Agreement, and is intended to cover what is strictly necessary to ensure the smooth transition into the operational phase. It therefore allows certain Articles of the UPC Agreement (eg, concerning judges and budget of the UPC) to enter into force early. The PPA, and hence the provisional application phase, will enter into force the day after 13 Signatory States of the UPC Agreement (including Germany, France, and the UK), have either ratified, or informed the depositary that they have received parliamentary approval to ratify, the UPC Agreement; and have (i) signed the Protocol on provisional application, or (ii) declared that they consider themselves bound by the provisional application of the articles of the UPC Agreement mentioned in Article 1 of the PPA.

With the UK now having completed the necessary procedure, it remains for only 4 States (including Germany) to take similar steps before the PPA enters into force. A number of States are indeed close to completing the necessary procedures, although it seems that Germany will be unable to progress this pending resolution of the constitutional complaint filed against the UPC Agreement (see post of 27 June).

On the UK front, the final few steps for the UK’s formal ratification of the UPC Agreement have been set in motion, with the final statutory instrument to implement the Protocol on Privileges and Immunities of the UPC having recently been laid before the UK Parliament. (A similar statutory instrument also has to be laid before the Scottish Parliament.) Only after the statutory instruments have been passed can the UK formally ratify the UPC Agreement.

For more information:

Protocol to the Agreement on a Unified Patent Court on provisional application

Draft of the UK Unified Patent Court (Immunities and Privileges) Order 2017

27 June 2017 - UK ratification progress but UPC start delayed by German Federal Constitutional Court

Though the UK election result has thrown further uncertainty into the UPC/UP timetable, the UK Government has recently laid the remaining piece of legislation before the UK Parliament. We hope that the UK Parliament and the Scottish Parliament will pass the Statutory Instruments implementing the Protocol on Privileges and Immunities of the Unified Patent Court by the end of this year, followed by a swift ratification of the UPC Agreement by the new Conservative/DUP UK Government.

In the meantime, Germany has unexpectedly added to the uncertainties. The German President has put the ratification process on hold, pending a constitutional complaint against both the German bill for ratifying the UPC Agreement and the UPC Agreement itself, filed in March this year. The Federal Constitutional Court obviously believes the case has some merit. The legal arguments on which the complaint is based are currently unknown though and thus the chances of success cannot be evaluated. It is therefore unclear what the impact will be on the overall UPC ratification schedule. Considering the urgency and political dimension associated with this case some commentators are optimistic that the Federal Constitutional Court renders a decision on the merits still this year. But it cannot be excluded that the Court rather decides to wait for the result of the Brexit negotiations until it hands down a decision.

Alexander Ramsay, Chairman of the UPC Preparatory Committee, has announced it is difficult to maintain a definitive starting date for the period of provisional application. However, he is hopeful that the constitutional complaint in Germany will be resolved rather quickly and the period of provisional application can start during the autumn 2017. This would mean that the sunrise period for the opt out procedure would start early 2018 followed by the entry into force of the UPCA and the UPC becoming operational.

For more information:

A&O article on UPC implementation in the UK: considering the impact of the UK General Election

Draft of the UK Unified Patent Court (Immunities and Privileges) Order 2017

A&O article on UPC ratification process in Germany put on hold following constitutional complaint

Message from Alexander Ramsay, Chairman od the UPC Preparatory Committee on 27 June 2017

10 April 2017 – UPC Preparatory Committee publishes updated Rules of Procedure and announces preparations are ready

The Preparatory Committee has published an updated draft of the Rules of Procedure for the UPC, adopted in its last meeting on 15 March 2017. The draft contains a number of minor changes compared to the 18th draft of 19 October 2015. In particular, the rules on opt-out (deletion of opt-out fee), on court fees and on determining the value of proceedings have been adapted, after the court fees had been published last year (see note of 26 February 2016 below).

The Rules of Procedure and the court fees are not final yet. The Administrative Committee of the UPC – which is yet to be created – must adopt them. Setting up this committee and adopting the rules and fees are part of the work planned during the provisional application phase. According to the Preparatory Committee, the preparations are ready for this phase to start.  A small, operational team is overseeing the recruitment of judges, testing of the IT and case management system and ensuring resources are in place and trained in readiness for the Court opening.

The start of the provisional application phase depends on four more Signatory States acceding to the Protocol on Provisional Application. Currently nine of the thirteen necessary states have done so already; Germany is likely to ratify the Protocol soon. The Preparatory Committee is confident that a sufficient number of states will accede in time for the provisional application phase to start at the end of May 2017, ensuring the planned entry into force of the UPC in December 2017.

For more information:

Updated draft Rules of Procedure of the Unified Patent Court as of 10 April 2017

Summary of changes to the Rules of Procedure October 2015

Summary of changes to the Rules of Procedure July 2015

Report on final Preparatory Committee meeting 15 March 2017

10 March 2017 – German parliament approves ratifying the UPC Agreement

The German Bundestag has approved the bill consenting to the UPC Agreement and to the protocol on provisional application, as well as a bill amending German patent law accordingly. This is a major step in allowing the German government to proceed with ratification. The Bundesrat (Federal Council) also needs to approve the bills; a decision is expected soon. As a sufficient number of other countries have already ratified, only Germany and the UK need to ratify for the UPC to start operating. For the planned start in December 2017, both ratifications must be reached by the end of August 2017. The German government is likely to ratify the Protocol to the UPC Agreement on provisional application soon, allowing the provisional application phase to start before the summer, as the Preparatory Committee mentioned in its announcement in January. Then the UPC’s organisation can be set up, and judges can be recruited.

In addition, a draft bill on consenting to the Protocol on Privileges and Immunities of the UPC has passed the first reading in the Bundestag and is now with the legal committee. This protocol will give legal personality to the UPC and various privileges and immunities to the court and its judges, registrar and other staff.

10 February 2017 – Italy ratifies the UPC Agreement

Italy became the most recent country to ratify the UPC Agreement, depositing its instrument of ratification in Brussels on 10 February. This makes Italy the 12th country to ratify, joining Austria, Belgium, Bulgaria, Denmark, Finland, France, Luxembourg, Malta, the Netherlands, Portugal and Sweden. Ratification is required by 13 member states (including France, Germany and the UK which are mandatory jurisdictions) before the UPC system comes into effect. Germany and the UK are preparing for ratification so that the UPC may start operating in December, as the Preparatory Committee announced.

For more information: EU council website on UPCA ratification

16 January 2017 – UPC may open its doors in December 2017

The UPC Preparatory Committee is now working under the assumption that the Provisional Application Phase (PAP) will start as early as in May 2017, and that the UPC Agreement can enter into force and the Court become operational in December 2017. During the PAP, the organization as such and the UPC's formal governing bodies will be established. Also, judicial interviews can begin and judges can eventually be appointed.  This timetable, however, is subject to the necessary ratifications of the UPCA being achieved on time. The Preparatory Committee will hold its final meeting in early March 2017, and then hand over the work to the UPC bodies.

Patent holders will now have to plan and implement their UPC strategy. Under the announced schedule, the so- called sunrise period will start in early September. Patent holders wishing to opt out their European patents will have to do so within the 3 months period before the Court becomes operational, to be on the safe side. At the same time as the UPC will become operational, the EPO will start granting unitary patents.  

For more information: Preparatory Committee statement

28 November 2016 – UK government announces intention to ratify the UPC Agreement

The UK government has confirmed it is proceeding with preparations to ratify the Unified Patent Court Agreement over the coming months. For as long as the UK is a member of the EU, it will continue to play a full and active role. The decision to proceed with ratification should not be seen though as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU. The UK will work with the Preparatory Committee to bring the UPC into operation as soon as possible. The UK legislation amending the UK Patents Act 1977, implementing the Unitary Patent and Unified Patent Court in the UK, had already been approved in Parliament in March this year (see post of 2 March 2016 below). The UK’s ratification will also secure the London life sciences branch of the court, premises for which have already been found.

The UPC Preparatory Committee welcomes the news. It will allow planning when the required number of ratifications is reached to allow the Agreement to enter into force. 13 member states (including France, Germany and the UK which are mandatory jurisdictions) must ratify; 11 states have already done so. Germany, Italy and Lithuania are also preparing for ratification. Considering the planned half-year period of provisional application, a launch date in the second half of 2017 seems likely now. The Preparatory Committee will publish a revised roadmap as soon as possible so that businesses can prepare for the start of the system.

A number of prospective users of the system, including large UK-based innovative companies, had expressed strong support for the UK participating in the UPC. The UK would probably not have taken this step if it was not strongly considering remaining within the UPC upon exit from the EU. All of the potential legal obstacles against this possibility could be overcome through the exit agreement that is to be negotiated between the EU and the UK.

For more information:

UK government announcement

UPC Preparatory Committee press release

19 September 2016 – Fifth progress report on the latest state of play in implementing the unitary patent package

The Select Committee and the Preparatory Committee set out in their report for the Council Presidency that the UPC could open its doors early next year if the required ratifications took place soon. The Select Committee has completed the implementation of the Unitary Patent Protection and has adopted all necessary rules.

The Preparatory Committee has agreed all legal instruments needed for the UPC and is now in its last phase of preparing the technical framework and judicial appointments. Recently the Committee has agreed on amendments to the Rules of Procedure following the previous agreement on the court fees, a Code of Conduct for representatives who appear before the Court, and the Rules of Arbitration and Mediation. The Preparatory committee received more than 800 applications for legal and technical judges. However, only after the required number of Member States’ ratifications has been achieved, the judicial interviews, advanced training and selection of judges can take place. The Case Management System is close to completion. Several court premises are ready or almost finished.

The report states that it is highly desirable to keep any delay of the entry into force of the system to a minimum in order to provide the business community with the clarity and the swift entry into operation of the new patent system they require.

Further information: Implementing the Patent package – Fifth progress report

14 September 2016 – The Netherlands ratifies the UPC Agreement

The Netherlands became the latest country to ratify the UPC Agreement, depositing its instrument of ratification in Brussels on 14 September. This makes the Netherlands the 11th country to ratify, joining Austria, Belgium, Bulgaria, Denmark, Finland, France, Luxembourg, Malta, Portugal and Sweden. Ratification is required by 13 member states (including France, Germany and the UK which are mandatory jurisdictions) before the UPC system comes into effect. In Germany and in Italy the legislative process for ratification continues irrespective of the Brexit vote.

For more information: EU council website on UPCA ratification

30 June 2016 – Preparatory Committee and Select Committee continue to prepare for the UPC - Impact of Brexit on the UPC and the unitary patent cannot be assessed yet

The Preparatory Committee and the Select Committee are of the opinion that work on the technical implementation of the UPC should continue to progress as envisaged, despite the vote in the United Kingdom in favour of leaving the European Union. According to the committees’ communication, the work is far advanced and expected to be completed before the end of the year. Both committees refer to the clear wish of the user community to bring the UPC and the Unitary Patent into operation as soon as possible. The impact of the vote on the UPC and the Unitary Patent Protection is currently open and will largely depend on political decisions in the next months. For the time being the United Kingdom remains an EU Member State and a Signatory State of the UPC Agreement. The Preparatory Committee held its 17th meeting in Stockholm and agreed, inter alia, to complete the recruitment process for judges. For more information, please see: Preparatory Committee and Select Committee communication Report on 17th Preparatory Committee meeting

3 June 2016– Bulgaria ratifies the UPC Agreement

Bulgaria became the latest country to ratify the UPC Agreement, depositing its instrument of ratification in Brussels on January 19. This makes Bulgaria the 10th country to ratify, joining Austria, Belgium, Denmark, Finland, France, Luxembourg, Malta, Portugal and Sweden. Ratification is required by 13 member states (including France, Germany and the UK which are mandatory jurisdictions) before the UPC system comes into effect.

For more information: EU council website on UPCA ratification

9 June 2016 – Allen & Overy’s second UPC benchmarking study shows that patent heavy businesses buy into benefit, those with small portfolios less convinced as time runs out

A year before the Unified Patent Court (UPC) is set to launch, considerably more patent heavy businesses believe the UPC will benefit their company (80%), compared to only 36% of those with small portfolios. This is according to a survey by Allen & Overy of 151 European senior executives with responsibility for their company’s patent portfolio.

Across all those surveyed, however, just over half (51%) of businesses say the UPC will benefit them, down from three quarters (74%) in 2014. Based on our work with clients on the UPC over the past two years, this general change in mood is not a reflection of a more negative opinion of the UPC but the result of businesses taking a more mature and nuanced approach to the system.

The findings highlight that businesses with significant IP exposure are better prepared, with senior management assessing the opportunities and risks the UPC presents and taking a more commercially pragmatic approach as the UPC becomes a reality. Those with small and medium sized portfolios, however, are still struggling to engage senior management and possibly lack the expertise to assess their exposure and the risks to their business.

There is an increasingly urgent need for the UPC to help educate businesses and SMEs in particular on how the new system will work. The number one challenge for businesses in preparing for the UPC remains getting clear answers to questions regarding how the system will work in practice and its various implications for their business, according to 68% of respondents. With better understanding may come better acceptance of the benefits of the UPC system.

For full details please click here or access the full report at www.allenovery.com/upcbenchmarkingstudy2016

9 May 2016 – Preparatory Committee is recruiting judges for the UPC

The Preparatory Committee has opened the recruitment process and candidates can now apply for judge positions. They must be nationals of the UPCA signatory states; to be appointed, their home state must have ratified. Candidates for legally qualified judges must be qualified for judicial offices in their home state and comply with any age limit for this. The general age limit for all UPC judges is 67 years. Candidates can apply until 4 July 2016.

Following a first round of selection and interviews with the selected candidates on non-technical skills, the Advisory Committee will recommend the most suitable candidates to the Administrative Committee – which will appoint the necessary number of judges for a proper functioning of the UPC. They are aiming at selecting the best legal and technical expertise and a balanced composition of the UPC on a broad geographical basis. The recruitment process is expected to take seven months, to be finalised when the UPC opens its doors in early 2017.

For more information: Judicial Recruitment on the Preparatory Committee website

2 March 2016 - UK Government is pressing ahead to prepare for ratification of the UPC agreement

Despite the forthcoming UK referendum on whether to leave or remain within the European Union, the UK Government is pressing ahead with measures to prepare for ratification of the UPC Agreement. To this end, draft legislation has now been debated and approved in Parliament amending the UK Patents Act 1977 to provide for implementation of the Unitary Patent and Unified Patent Court in the UK. It will come into force when the UPC Agreement comes into force. The changes are largely uncontroversial, but they do include the incorporation into UK patent law of two extra exceptions to infringement based on the UPC Agreement. The first implements Article 27(c) of the UPC Agreement and allows plant breeders to use patented biological material to develop new plant varieties. The second implements 27(k) of the UPC Agreement and creates an exception that mirrors the exception to copyright infringement in the Software Directive (2009/24/EC) relating to decompilation and interoperability in particular. The IP Minister, Baroness Neville-Rolfe explained in the House of Lords that the high tech and ICT sectors have expressed widespread concern about the scope of this second exception, the terms of which are unclear. Many companies in those fields have favoured a “safe haven” approach whereby the exception would be applied to European patents (UK), but not to UK national patents, allowing companies who are particularly concerned about this point to obtain national patents to avoid the application of the exception. As a result, the draft legislation provides for the second exception not to apply to UK national patents.

26 February 2016 – UPC Court fees confirmed

The UPC Preparatory Committee has today published the agreed rules on Court fees and recoverable costs for the UPC. These are, however, in the Committee’s own words, subject to final “legal scrubbing” before formal adoption.

The Preparatory Committee began consulting on fees and costs in May last year. Fixed fees will remain broadly as proposed in the consultation. The most important change is that there will be no fee for opting a “classical” European Patent out of the jurisdiction of the UPC.

Value-based fees (payable in infringement actions and DNI actions, among others) have changed. Fees for actions worth up to and including €2 million will be slightly lower than first proposed; for actions worth €4 million or greater, fees will be higher, and new fee bands have been added for claims worth €30 million and above, although fees for actions worth more than €50 million will be capped at €325,000. Broadly speaking, the fees on appeal will be the same as fees at first instance.

The ceiling for recoverable costs has been decreased across all values of action. These now range from €38,000 (for actions worth up to €250,000) to €2 million (for actions worth over €50 million), although in practice the Court may set recoverable costs at a lower level.

Read the proposal on court fees and recoverable costs here.

18 February 2016 – Real progress towards the UPC opening in early 2017

Apart from Germany making its way to ratification (see below), a lot has happened recently, and despite the Brexit uncertainty (see further below) there is hope that the UPC will open its doors in early 2017. The Preparatory Committee aims to finish its work by mid-June 2016, as Chair Alexander Ramsay confirmed at a conference earlier this month. This week the Preparatory Committee agreed the Rules on Mediation – they will only need some “legal scrubbing”. By March the Preparatory Committee is to declare the court fees: there will be fixed fees for revocations, value based fees for infringement actions, and possibly ceilings on recoverable costs. In the meantime, some states have already settled the locations of their court divisions. If the 6 month transitional period starts in the summer, the UPC can fully operate from early next year. For this, four further states – including Germany and the UK – would have to ratify the UPC Agreement (after Finland did so in January (see below).

For more information: Preparatory Committee agree Rules on Mediation Confirmed locations of the UPC

18 February 2016 – Germany takes steps to ratify and implement the UPC

The German Federal Ministry of Justice has published two draft bills for implementing the UPC: an act for Germany to ratify the UPC Agreement and an act adapting local patent law to the unitary patent package. The draft ratification bill covers both the UPC Agreement and the protocol on provisional application for a transitional period. The other draft suggests amending German patent law for the new unitary patent to fit in the system and to allow UPC judgments to be easily enforced in Germany. Interestingly, the draft on ratification sets out the Ministry’s estimations on costs of the UPC, assuming the German costs for the first four years to be between 4.5 and 6 million Euros per year. The Ministry expects the UPC to reach its full workload of 1,800 to 2,200 cases (in total) after ten years, but only expects about 180 cases in the first year. Germany will host a central division in Munich (engineering cases) and four local divisions in Düsseldorf, Hamburg, Mannheim and Munich. It is hoped that the Bundestag will decide on the draft bills before the summer.

Read more on the Ministry’s website (in German):

Draft bill on UPCA ratification

Draft bill on adapting German law to the European patent package

17 February 2016 - The long-awaited European Unitary Patent project is scheduled to go live in early 2017 - we assess the likely impact of a Brexit

This article is one of a series of specialist Allen & Overy papers on Brexit. In this article we discuss the possible impact of Brexit on the launch of the Unified Patents Court (UPC), scheduled to launch in 2017. We examine what the potential immediate fall out could be; whether the UK needs the UPC (and vice versa); the wider picture regarding the post Brexit IP world; and how the UK may need to interact with the UPC and other EU patent courts from 'outside'.

Please click here to see the full article.

To see our other articles on Brexit, please go to www.allenovery.com/brexit.

5 February 2016 - Allen & Overy's mock UPC trials give a flavour of the real thing

In January 2016, a year before the anticipated opening of the new Unified Patent Court, Allen & Overy’s patent litigators from seven of our European offices took part in two “mock” hearings before a fictional UPC court operating at our Brussels office.

Based on fictional client scenarios in the life sciences industry, four teams of lawyers were tasked with advising on possible strategic actions to leverage the opportunities (and risks) of the UPC for their clients. During the two months in the run up to the trial, teams received information from their ‘clients’ designed to make them alter their strategic course and enter into mock correspondence. After much deliberation, they made their applications and argued their cases before mock first instance and appeal courts consisting of seven Allen & Overy intellectual property partners from five different European jurisdictions.

For more information about the mock trial, please click here.

19 January 2016 – Finland ratifies the UPC Agreement

Finland became the latest country to ratify the UPC Agreement, depositing its instrument of ratification in Brussels on January 19. This makes Finland the 9th country to ratify, joining Austria, Belgium, Denmark, France, Luxembourg, Malta, Portugal and Sweden. Ratification is required by 13 member states (plus France, Germany and the UK which are mandatory jurisdictions) before the UPC system comes into effect.

For more information: EU council website on UPCA ratification

28 October 2015- Preparatory Committee agrees the Rules of Procedure of the Unified Patent Court

The near-final form of the 18th Draft of the UPC Rules of Procedure has been formally adopted by the UPC Preparatory Committee at their most recent meeting on 19 October 2015. Although there will be further amendments to the 18th version in light of the ultimate rules on court fees and any additional technical amendments, the text published yesterday represents years of intensive work between the Preparatory Committee’s Legal working group, the Drafting Committee and stakeholders, including representatives from the Allen & Overy UPC team.

Read more here.

1October2015-TransitionalperiodforsettinguptheUPCagreed

A protocol to the UPC Agreement has been signed by representatives of member states. This will allow some parts of the UPC Agreement to be applied early. This includes final decisions on the practical set up of the Court, for example, the recruitment of judges and testing of IT systems. The provisional application phase will also be used to allow for early registration of opt-out demands. The protocol needs ratification by at least 13 signatory states to the UPC Agreement, including France, Germany and the UK. The Preparatory Committee aims to complete its work by June 2016 with a view to the UPC opening at the start of 2017.

Read the protocol here.

27 July 2015 - 18th Draft of UPC Rules of Procedure

The 18th draft of the UPC Rules of Procedure (the Rules) is now available (click here). The 18th draft of the Rules, presented at the 10th meeting of the UPC Preparatory Committee on 10 July 2015, comes eight months after the public oral hearing on the 17th draft held last November in Trier, Germany. The final form will be agreed at the Preparatory Committee's meeting in October 2015.

The number and extent of changes in the 18th draft are likely to be less than what some stakeholders were hoping, especially in relation to substantive issues such as the so-called "injunction gap" and the power to accelerate proceedings under Rule 40. However, the 18th draft does clarify some lingering procedural uncertainties which are summarised as follows:

Read more here.

22 May 2015 - Italy to join UPC

Following the decision of the CJEU to dismiss the ‘Spanish Challenge’ to the UPC on May 5, on 13 May the Inter-ministerial Committee for European Affairs expressed the Italian government’s willingness to adhere to the so-called “enhanced co-operation” procedure.

The Italian Parliament is now expected to join the unitary patent (where it had previously not taken part) and ratify the UPC Agreement (which it already signed).”

Confindustria, and other industry associations, warmly welcomed the new Government’s approach and the President of the Centre of Studies on anti-counterfeiting expressed the hope that the government will also work for the establishment of a Regional Court in Italy. The President of ICC Italia, along with some category associations, has addressed to the Ministry of European Affairs a letter, highlighting once again the importance for Italy to sign and ratify the whole unitary patent package.

8 May 2015 – Preparatory Committee launches consultation on UPC court fees

On 8 May 2015 the Preparatory Committee launched a public consultation on the fee structure for the UPC. The consultation document suggests two options for a revised Rule 370, a table of fees, a scale of ceilings for recoverable costs. There will be fixed fees and, for certain actions, an additional value based fee. The Preparatory Committee states that the proposed fee levels are the lowest that will enable eventual sustainability of the court. The consultation also addresses further points including support for SMEs, non-profit organisations and certain other bodies, the threshold at which a value-based fee will be payable, and a scale of ceilings for recoverable costs. Responses can be submitted until 31 July 2015.

Consultation document with explanatory note

Further information on the Preparatory Committee website

5 May 2015 - CJEU gives green light to implementation of the Unified Patent Court

On May 5, 2015, the CJEU removed the final obstacle for the entry into force of Unitary Patent and Unified Patent Court (UPC). With this decision, Spain lost the last of the two cases that it brought before the CJEU, challenging the legitimacy of the UPC system under EU law. In its decision, the CJEU has accepted that the UPC system can legitimately be built up, to a very large extent, outside the realm of European Union law, with the CJEU playing virtually no role in patent litigation. It is now up to the Member States to ratify this new system, expected to come into force by the end of 2016/early 2017.

Read more here.

CJEU judgment in Spanish challenge (C-146/13), 5/5/2015

CJEU judgment in Spanish challenge (C-147/13), 5/5/2015

6 March 2015 – EPO publishes proposals for the level of renewal fees for European patents with unitary effect

Applicants of European patents and lawyers, as well as patent attorneys, have waited a long time for the news. On 6 March 2015, the President of the EPO published proposals for the level of renewal fees for European patents with unitary effect (unitary patents). The Select Committee of the Administrative Counsel has been requested to advise on the Office's two proposals.

The First Proposal is said to be set out on the basis of the sum for the 4 most frequently validated countries (TOP 4 level) from year 10, while maintaining the level of EPO internal renewal fees for years 3 to 5, with a steady progression until year 10. Over 20 years, that accrues EUR 37.995.

The Second Proposal is based on the TOP 5 level, i.e. a sum for the 5 most frequently validated countries from year 10, while maintaining the level of EPO internal renewal fees for years 3 to 5, with a steady progression until year 10. In addition, a reduction for certain categories of patentees, namely SMEs, Universities and others, is provided. Over 20 years, that accrues EUR 43.625 and EUR 41.655 for the normal and reduced level, respectively.

It has to be noted that, in its calculation, the EPO has taken into account additional costs incurred by the applicant for hiring a local patent attorney to administer renewal-fee payments. This is argued by the EPO to make the proposal appear more attractive in comparison to the total sum of national fees for a small number of states (3 to 5).

For those patents that require validation in many countries, e.g. basic patents in the pharmaceutical industry, the proposal for the renewal fees of a unitary patent may seem attractive. Other industries where patents require validation in only in 3 to 4 countries will have to take the decision of which European patent they are ready to accept additional costs for a unitary patent. In that context, it will also have to be taken into account that, with the unitary patent, there will not be the flexibility to allow the European patent to elapse in individual countries when the renewal fees increase in the later years of a patent.

On initial inspection, the proposals submitted by the President of the EPO appear to be in line with the expectations set by him, i.e. the fees will be higher than hoped, but lower than feared.

Read more here.

18 November 2014 – Advocate General proposes that the CJEU should dismiss the Spanish challenge to the unitary patent regulations

The Unitary Patent System is one step closer to entering into force, as it now seems less likely that Spain will succeed in challenging the unitary patent package. In March 2013, the Kingdom of Spain asked the Court of Justice of the European Union (CJEU) to annul the regulation creating unitary patent protection (regulation (EU) 1257/2012) and the regulation on translational arrangements (regulation (EU) 1260/2012). At the oral hearing in July 2014, eight member states argued in favour of the new system. In today’s opinion, Advocate General (AG) Yves Bot agrees with the member states and proposes that the CJEU should dismiss Spain’s actions.

He stated that the unitary patent regulation does not affect the procedure to grant patent protection under the European Patent Convention but only gives European patents unitary effect in addition, which is beneficial for uniformity and integration. AG Bot disagrees with Spain’s claim that the Unified Patent Court Agreement (UPCA) affects the European Union’s powers as it confers powers on the European Patent Office (EPO). AG Bot points out that the CJEU does not have jurisdiction to review the content of the UPCA in this action for annulling the regulation. AG Bot also emphasises that making the application of the unitary patent regulation dependant on the entry into force of the UPCA ensures the proper functioning of the unitary patent, consistency of case-law and, hence, legal certainty. On the translational regulation, AG Bot takes the view that it is appropriate to limit the range of languages to English, French and German. If costs are to be kept down, European Union legislature has no choice but to restrict the number of translations needed, and practitioners are used to working in these three languages at the EPO.

In the majority of cases, the CJEU follows the opinion of the AG in its decisions. The judgment is expected in a few months' time.

For more information:

CJEU press release summarising the opinion

Allen & Overy eAlert on the hearing in July 2014

4 November 2014 - The 17th cut of the UPC Rules of Procedure: the highlights

The Preparatory Committee for the Unified Patent Court (UPC) published the 17th draft of the Rules of Procedure for the UPC. In this alert, we cover the substantive changes made to the Rules and what effects these might have.

Of particular importance to the industry are the changes made to the Rules concerning permanent injunctions, which are now expected to be quasi-automatic, as well as to bifurcation, where the Rules endeavour to prevent the occurrence of ‘injunction gaps’. Further clarity is also brought on the limits of opt-in/opt-out strategies.

Read more here

23 September 2014 - Progress on implementing the UPC and Unitary Patent

Recent communications from the Preparatory Committee and the Select Committee demonstrate what has been achieved in establishing the UPC and which steps will come next. The Council of the European Union has published a third progress report on the latest state of play, and the Preparatory Committee has updated its roadmap.

The Preparatory Committee has announced the appointment of an informal advisory panel of expert practitioners – lawyers, judges, patent attorneys and business representatives from various EU countries. Their first task will be to help review the draft rules of procedure and establish a revised draft. The Preparatory Committee plans to hold an oral hearing on these rules at the end of November 2014, and to agree on them by May 2015. The consultation on the European Patent Litigation Certificate (see below) received over 80 submissions. The Legal Working Group is now analysing the comments and will prepare a revised final draft for early 2015. The Preparatory Committee has also agreed on a list of judge candidates: 341 technically qualified candidates and 354 legally qualified candidates were considered to be eligible, partly subject to training. The first training program is to start at the end of this year. Judges can only be appointed once the UPC is established. The Preparatory Committee assumes that the UPC will start working with part-time judges and only a limited number of full-time judges. A discussion on court fees is expected before the end of 2014, and a consultation on these is to be launched in spring 2015. For the transition to make the UPC fully operational, the Preparatory Committee is exploring whether the Signatory States might agree on the provisional application of the institutional, organisational and financial provisions of the UPCA and Statute during three to six months before the UPCA enters into force.

The Select Committee has adopted in principle the draft rules for the unitary patent protection. It will now concentrate on the financial and budgetary aspects, in particular on projections of scenarios for the level of renewal fees and estimations of costs for the administration of the Unitary Patent Protection.

For more information:

Third Progress Report on Implementing the Patent Package

Updated Roadmap of Preparatory Committee

Preparatory Committee Announcement of Expert Panel

13 August 2014 - Denmark implements Brussels I Update Regulation

On 13 August, Denmark informed the European Commission that it will implement Regulation 542/2014 amending Regulation 1215/2012 regarding the rules to be applied with respect to the Unified Patent Court and the Benelux Court of Justice (the "Brussels I Update Regulation"). Denmark had originally opted out of the Brussels I regime, which governs the jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters in EU countries. However, the recent referendum vote in favour of ratifying the Unified Patent Court Agreement in Denmark has made it necessary for the country to implement the Brussels I Update Regulation.

1 July 2014 -The Court of Justice of the European Union (CJEU) Hears the Spanish Challenge to the European Unitary Patent

Despite the progress that has been made towards launching the European unitary patent system and the Unified Patent Court, Spain continues to actively oppose the changes to the extent that today the CJEU heard the second legal action brought by Spain in relation to the system.

In this piece, as well as reporting on the salient points of Spain’s challenge and providing a summary of today’s hearing, we consider what the implications of this new challenge may be for the European unitary patent system, and how the CJEU could try to maintain the political consensus without betraying its own constitutional case law.

For further information on the Spanish challenge please click here.

13 June 2014 -Preparatory Committee publishes revised proposals for the European Patent Litigation Certificate for public consultation

The Legal Working Group of the Preparatory Committee published its proposals on the draft European Patent Litigation Certificate (EPLC) on 13 June 2014. The EPLC sets the appropriate qualifications a European Patent Attorney needs to have pursuant to Art. 48 (2) of the Unified Patent Court Agreement to act as a representative before the UPC. The draft proposals are accompanied by an Explanatory Memorandum which further details the background of the draft rules on the EPLC. The draft proposal will be available for six weeks to allow users to make comments and representations. The consultation will close at midnight on 25 July 2014. Comments must be sent electronically to secretariat@unified-patent-court.org

The draft EPLC and the Explanatory Memorandum are available at: http://www.unified-patent-court.org/consultations

6 June 2014 -Sweden and Belgium have ratified the Unified Patent Court Agreement

Sweden and Belgium are the third and fourth Member States to have ratified the UPC Agreement, after Austria and France. Following the Swedish Parliament’s approval of the legislation authorising ratification of the UPCA, Sweden’s instrument of ratification was deposited on 5 June 2014. The Swedish legislation provides for the establishment of the Nordic-Baltic regional division of the UPC. This will cover Sweden, Estonia, Latvia and Lithuania – and potentially Denmark. It will be based in Stockholm and operate in English. Belgium (see information below) has followed closely and deposited its instrument of ratification on 6 June 2014. Belgium will establish a local division of the UPC in Brussels, with the Court operating in French, Dutch and German (the national languages) and English.

For more information: Council website, Commission ratification website

25 May 2014 - Danish people vote in favour of joining the Unified Patent Court

On 25 May 2014, the Danish people voted in a referendum in favour of joining the Unified Patent Court (UPC). The final results showed that a vast majority of 60.45 % voted for the unitary patent and the unified patent court. The agreement still needs to be ratified by the Danish Parliament. Austria and France have already deposited the deeds of ratification, and Belgium and Malta have passed the necessary Acts for ratification. Ratification by 13 Member States is required for the Agreement to enter into force.

Internal Market and Services Commissioner Michel Barnier said: "The approval of the Agreement on the Unified Patent Court by Danish voters gives a very positive signal to all signatories and should encourage them to ratify without any further delay. As a first specialised court common to the Member States in the patent litigation area, the Court will open a new chapter in the history of both the patent system and judicial cooperation in the EU". It will remain to be seen whether Denmark will join the Regional Division formed by Sweden, Lithuania, Latvia and Estonia.

For more information: http://europa.eu/rapid/press-release_STATEMENT-14-172_en.htm

23 April 2014- Belgium approves ratification of Unified Patent Court Agreement (UPCA)

The Belgian House of Representatives have adopted a law approving the ratification of the Unified Patent Court Agreement. To finalize Belgium’s ratification, the Belgian authorities thus only have to deposit the instrument of ratification in Brussels with the General Secretariat of the Council of the European Union, pursuant to Article 89(1) of the Agreement.

For more information (in French): http://www.lachambre.be/kvvcr/showpage.cfm?section=/flwb&language=fr&cfm=flwbn.cfm?lang=F&legislat=53&dossierID=3454

16 April 2014- European Parliament endorsed update to the Brussels I Regulation to pave way for the UPC

On 16 April 2014, the European Parliament voted in plenary to complete the legal framework for Europe-wide patent protection updating the Brussels I Regulation and thus paving the way for the UPC to begin its work. The Brussels I Regulation sets out rules determining the international jurisdiction of the courts of the Member States as well as rules preventing parallel proceedings before the courts of different Member States. It also lays down rules for the recognition and enforcement of judgments of national courts in other Member States

The amendment, now endorsed by the European Parliament, clarifies how the jurisdictional rules will work in the context of the UPC, as well as how the rules should be applied in relation to the Member States, to parties to the Unified Patent Court Agreement and to those Member States which are not party to the Agreement.

More information: http://europa.eu/rapid/press-release_MEMO-14-308_en.htm

21 March 2014 – French authorities confirm that France has now filed the instruments of ratification of the UPCA

On 14 March 2014, the French authorities deposited the instruments necessary for ratification of the UPCA with the General Secretariat of the Council of the European Union, official sources say. France thus becomes the second country (following Austria) to ratify the Agreement. It is also expected that other participating member states may be prompted to accelerate their ratification processes following this week's European Council meeting in Brussels.

20 March 2014 – Official opening of the Training Centre for the training of United Patent Court judges in Budapest

On 13 March 2014, the Training Centre for the Unified Patent Court (UPC) was officially opened in Budapest. The Training Centre will operate as an office coordinating the training of judges and candidate judges of the UPC. The opening was followed by a two-day conference (13/14 March), at which participants discussed the functions of the new Training Centre in relation to the UPC. Training of judges is expected to start after the 2014 summer break.

More information: http://www.unified-patent-court.org/news

20 March 2014 – Preparatory Committee held its fifth meeting

During the meeting on 18 March, the Preparatory Committee revised its roadmap, agreeing that, despite substantial progress the UPC will not be operational until the end of 2015 at the earliest. The Preparatory Committee discussed proposals for the Rules on Court Fees and recoverable costs as well as the Rules related to the European Patent Litigation Certificate. Although the proposals were recognised as high quality, further work is needed before the public consultation can take place. The Committee discussed and decided on a proposal for a framework for the training of the candidate UPC judges that will enable the training to kick-start, hopefully immediately after the summer break.

Further information can be found in the News section of the UPC website.

19 March 2014 - German Ministry of Justice announces plans to set up local divisions in Düsseldorf, Mannheim, Munich and Hamburg

Yesterday, the German Ministry of Justice announced that local divisions of the UPC will be set up in Düsseldorf, Mannheim, Munich and Hamburg. Germany will thus take the opportunity to install four local divisions, accounting for the maximum possible number of local divisions allowed within one Member State (Art. 7 (4) UPCA). It does not come as a surprise to learn that Düsseldorf, Mannheim, Munich and Hamburg will be the hosts of these new local divisions as they are the most experienced patent courts in Germany, handling the vast majority of German patent infringement cases. However, up until very recently it has been highly contested whether, along with Düsseldorf, Mannheim and Munich, a fourth local division should be opened in Hamburg, or rather, for political reasons, in the eastern part of Germany. The Ministry of Justice has now decided against Leipzig, and voted in favour of the more experienced court in Hamburg. So far no decision has become public on whether English will be a second working language in the German local divisions.

More information can be found here

19 March 2014– Draft Rules of Procedure update

Recent events signal that the radical change to how patents are obtained and enforced in – and in particular involving Europe the new European Unified Patent Court (UPC) – is a fast-approaching reality and gaining momentum:

  • The pace of ratification has recently accelerated, with the French President having signed the bill of ratification on 24 February and the UK House of Commons having voted on the bill on 12 March 2014. The House of Lords is expected to follow suit on 30 July 2014. The Belgian Senate approved the UPC Agreement on 13 March 2014 and the Belgian House of Representatives is expected to follow this spring. These events indicate that the UPC will now almost certainly come into effect, probably by early 2016.
  • The Preparatory Committee of the UPC has just published a revised version of the draft Rules of Procedure for the UPC (the 16th version), which will form the basis of an audit later in 2014. Although the Expert’s Committee, mandated by the Preparatory Committee, has taken on board many comments received during the consultation period, the Rules of Procedure leave a lot of space for interpretation as a result of endeavouring to take a balanced compromise between the various jurisdictions and their judicial traditions in an attempt to develop a new uniform procedure for patent litigation. These uncertainties concern areas of significant importance to businesses.

Click here for details of the practical impact of the main changes to the Rules of Procedures and ratifications steps

Draft Rules of Procedure – 16th draft (March 2014)

Comprehensive digest of responses to the public consultation on the Rules of Procedure

14 March 2014 - Proposal for a European Patent Litigation Certificate to be discussed at the Legal Working Group of the Preparatory Committee

A proposal for rules on the European Patent Litigation Certificate and other appropriate qualifications was drafted by the Legal Working Group of the Preparatory Committee in January 2014 and is expected to be discussed during the 18 March Preparatory Committee meeting. According to this proposal, the European Patent Litigation Certificate would be issued by accredited universities of contracting Member States after successful completion of a course on European patent litigation (Rules 2 and 6). According to the draft, the course should have a minimum duration of 120 hours and be concluded by both written and oral examinations (Rule 4). Additionally, entry on the list of entitled representatives will also be authorised for: (i) European Patent Attorneys holding a bachelor or master degree in law of a Member State of the European Union (Rule 11); and (ii) during a transitional period of three years, European Patent Attorneys who passed one of the existing courses referred to in Rule 12. More importantly, during the same transitional period of three years, European Patent Attorneys having represented a party in at least two patent infringement actions initiated before a national Court of a Contracting Member State within the four years preceding the application may be entered on the list of entitled representatives.

Intense debates on this draft and interventions by associations of professionals have to be expected. The Council of Bars and Law Societies of Europe (CCBE), in a letter of 3 March 2014, has already expressed concerns that the suggested rules would not guarantee “appropriate quality and experience” to the representatives of litigants before the UPC. While the Legal Working Group will have to consider concerns, there will also be some pressure to make the training available to interested applicants in good time such they can acquire the European Litigation Certificate before the UPC gets started.

04 March 2014 – Sweden, Lithuania, Latvia and Estonia will form a regional division of the Unified Patent Court (UPC)

Sweden, Lithuania, Latvia and Estonia have together announced on 04 March 2014 that they will form a regional division of the Unified Patent Court (UPC). This is the first agreement on the creation of a regional division of the UPC. Denmark and Finland will not participate in this division.

Commissioner Barnier stated in a press release that he welcomes the agreement by Sweden, Lithuania, Latvia and Estonia on the creation of a regional division of the UPC: “I am very pleased to see those countries taking the lead in setting up local and regional divisions of the Court. The creation of a regional division will allow resources to be pooled most effectively while providing the necessary proximity to the parties. Today's announcement demonstrates the determination of the signatory states to make the Unified Patent Court and the unitary patent a success and a reality for our innovators and businesses as soon as possible. I hope that others will soon follow this example. I take this opportunity to call on all Member States to ratify the UPC Agreement without further delay.”

More information: http://europa.eu/rapid/press-release_STATEMENT-14-46_en.htm

28 February 2014 – France authorises ratification of Unified Patent Court Agreement (UPCA)

France has enacted a law authorising the government to ratify the UPCA. The Act was passed by the French Parliament on 13 February 2014, signed by President Hollande on 24 February 2014 and published in the Official Journal on 25 February 2014 (LOI n° 2014-199 juridiction unifiée du brevet; http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000028652178&dateTexte=&categorieLien=id).

Among Germany, France and the UK, France is the first country whose ratification is mandatory for the Agreement to come into effect in accordance with Art. 89 UPCA. In total, 13 ratifications are needed. Austria is the first country to do so, having ratified the UPCA on 7 August 2013. Malta is expected to ratify soon, following the adoption of legislation by its House of Representatives on 21 January 2014.

13 February 2014 – French Parliament authorises ratification of UPCA

 
On 13 February 2014, the French Parliament passed a law authorising the ratification of the UPCA (http://www.assemblee-nationale.fr/14/ta/ta0294.asp). The law still needs to be promulgated by the President and published in the Official Journal. Therefore, France will most probably be the first among France, Germany and the UK whose ratification is mandatory for Agreement to come into effect in accordance with Art. 89 UPCA. In total, 13 ratifications are needed. Austria is the first country to do so, having ratified the UPCA on 7 August 2013. Malta is expected to ratify soon following the adoption of legislation by its House of Representatives on 21 January 2014.

29 January 2014 - Interpretative note on the consequences of the application of Article 83 Unified Patent Court Agreement (UPCA)

Diverging views have been expressed recently on the question of which material law will need to be applied by national courts in the case whereby the holder of a European patent has opted out of the jurisdiction of the UPC in accordance with Art. 83 UPCA. Some have taken the position that an opt-out declaration has an effect on the jurisdiction of the UPC only, while the UPCA and its (limited) provisions on material law remain applicable to opted-out patents. Others, however, have interpreted Article 83 UPCA as providing a complete opt-out of the UPCA, during the transitional period, as such so that this Agreement will not be applicable under the law of national courts.

The Preparatory Committee has issued, on 29 January 2014, an Interpretative Note through which it has expressed its view that the UPCA no longer applies to the application for a European patent or the Supplementary Protection Certificate, where such right is opted-out (or where, during the transitional period, the case is brought before a national court). Therefore, the court would have to apply the applicable national law. Although the Preparatory Committee does not have any official role in interpreting the provisions of the UPCA, the view of the governments of the Member States represented in that Committee will have substantial weight.

Preparatory Committee's Interpretative note - Consequences of the application of Article 83 UPCA

21 January 2014 – House of Representatives in Malta authorises ratification of UPCA

On 21 January 2014, the House of Representatives in Malta adopted a law authorising the ratification of the UPCA. Malta would be the second country ratifying the UPCA following Austria, which did so on 7 August 2013.

10 January 2014 – Danes will decide on joining the UPC in May 2014

In May 2014, Denmark will vote on whether or not to join the UPC. Danish Minister for EU Affairs Nick Hækkerup confirmed that a referendum would take place on 25 May, the same day as the European Parliament elections in Denmark. As Denmark has an opt-out from EU legislation on justice, more than 80% of MPs have to support Denmark joining the patent court, or the government must call a referendum.

18 December 2013 – Preparatory Committee for the UPC gives update of its work in 2013

Paul van Beukering (Chairman of the Preparatory Committee) andAlexander Ramsay (Vice-Chairman) report on the progress of the Preparatory Committees work in their Christmas message. The consultation on the Rules of Procedure produced over 100 submissions, which the Preparatory Committee is now in the process of analysing with the help of the Drafting Committee. The pre-selection process of judges for the UPC has attracted well over 1,000 expressions of interest. An advisory panel has been appointed to help with assessing the qualification and experience of candidates and establishing the training requirements for the candidate judges. The Committee also agreed the procurement of an electronic filing and case management system for the court with multiple divisions and now intends to work on the requirements of this system.

Read the Christmas message from the Chairman and Vice-Chairman.

6 December 2013 – EU Justice Ministers agree on proposal (IP/13/750) to update the Brussels I Regulation to pave way for the UPC

Justice Ministers have backed the European Commission proposal to update the EU Regulation on the jurisdiction of courts and recognition of judgments (Regulation 1215/2012, the recast Brussels I Regulation). The amendment is to clarify how the jurisdictional rules will work in the context of the Unified Patent Court, as well as how the rules should be applied in relation to the Member States, parties to the Unified Patent Court Agreement and the Member States not party to the Agreement. The European Parliament needs to agree on the proposal. A vote is expected for May 2015.

Read the proposal.

Read the press release.

18 November 2013 – EU Council publishes report on latest state of play in implementing the enhanced patent system

Submitted on request by the Lithuanian Presidency, the report sets out what the committees on the Unitary Patent and the United Patent Court (UPC) have achieved so far. The Select Committee, set up by the participating Member States to overlook the interface between the EU Regulation in the European Patent with Unitary Effect and the European Patent Convention (EPC), has started discussing the draft Rules on Unitary Patent Protection as well the financial and budgetary aspects of the implementation.

The Preparatory Committee of the UPC intends to ensure that the Unified Patent Court is from the outset fully operational in early 2015. It has held two more meetings after its inaugural meeting in March (see below). It established its Roadmap, launched a pre-selection procedure for future judges of the UPC, launched a public consultation on the draft Rules of Procedure of the UPC and discussed the financing of costs arising in the preparatory phase. The Preparatory Committee also selected co-ordinators to lead sub-groups of Contracting States on each of its five areas of work (legal framework, financial aspects, IT, facilities and human resources and training). The Legal Working Group is examining the over a 100 submissions on the consultation of the draft Rules of Procedure which are to be adopted before Summer 2014. The Human Resources and Training Group has launched a pre-selection procedure for judges at the UPC, aiming to have a provisional list of suitable candidates.

Read the report here. Visit The Preparatory Committee’s website.

16 April 2013 – CJEU dismisses the actions brought by Spain and Italy - Judgment in Joined Cases C-274/11 and C–295/11 Spain and Italy v Council.

The Court has dismissed the actions brought by Spain and Italy against the Council’s decision to authorise enhanced cooperation in the area of the single European patent. In a decision adopted in 2011, the Council authorised enhanced cooperation between 25 Member States with a view to creating a single European patent, with only Spain and Italy refusing to participate.

The CJEU observed that the Council's decision to authorise enhanced cooperation, having found that the unitary patent and its language arrangements could not be established by the Union as a whole within a reasonable period, did not constitute a circumvention of the requirement of unanimity, but rather, contributed to the process of integration. The CJEU also rejected the legal plea by Spain and Italy alleging a breach of the condition that a decision authorising enhanced cooperation must be adopted only as a last resort. In addition, the CJEU found that the Council's decision did not disregard the judicial system of the European Union.

Read the full judgment here

27 March 2013 - Preparatory Committee of the Unified Patent Court established

The preparatory Committee of the Unified Patent Court held its first meeting on 26 March 2013. An email following their inaugural meeting was sent to different stakeholders and sets out the initial approach and objectives of the Preparatory Committee. One of its first tasks is to work out a roadmap on how to establish to Unified Patent Court. According to the Preparatory Committee early 2015 is a realistic target date for the Unified Patent Court to become operational.

The Preparatory Committee states that it "considers it to be of vital interest that stakeholders will be actively involved in the work of the Committee. Input from industry, patent judges and practitioners will be needed throughout the process, both at the expert level of the project teams and at a more general level. This will be realised through formal as well as informal consultations and dialogue sessions. An important instrument for communication will be the Committee's website which will be developed shortly." The Preparatory Committee will hold its next meeting end of May, early June.

The email can be read here.

27 March 2013 - Spain takes Parliament and Council to Court over "Unitary Patent Package"

Spain has brought two actions before the Court of Justice (cases C-146/13 and C-147/13) against Regulations 1257/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection (OJ 2012, L 361/1) and 1260/2012 on the applicable translation arrangements (OJ 2012, L 361/89). There is no parallel action against the Regulations to be expected from Italy, which already signed the Agreement on a Unified Patent Court.

At this time no further information on the legal grounds is available.

Proceedings are expected to take at least until early 2015.

8 March 2013 - Setting up of the Preparatory Committee in the context of the Agreement on a Unified Patent Court - Information from the Presidency

On 8 March 2013 the Presidency sent a letter to the Permanent Representatives Committee (Coreper) announcing the following steps that will be taken in the framework of the Unified Patent

5 March 2013 - Bulgaria signs the UPC Agreement

Three weeks after 24 other member states, Bulgaria today signed the UPC Agreement. Now only Spain and Poland have not signed the Agreement.

27 February 2013 – The Friends of the Presidency Group (Patents) meet in Brussels

On 27 February 2013 the Friends of the Presidency Group (Patents) have met in Brussels. The Agenda comprised of a first exchange of information from Member States on ratification plans as well as an exchange of views concerning the setting up of the Preparatory Committee.

19 February 2013 - The UPC Agreement has been signed by 24 member states

On 19 February 2013 the international agreement for establishing a Unified Patent Court was signed in Brussels. It will ensure the uniform applicability of patent law throughout the territories of the signatory countries. Bulgaria did not sign the agreement today for internal procedural reasons. Poland and Spain decided not to sign the Agreement. They can still sign the Agreement on a later date.

For entering into force, the Unified Patent Court Agreement needs to be ratified by at least 13 EU Member states.

Moreover, ratification by Germany, United Kingdom, and France is mandatory. Read the press release here

Court. The Preparatory Committee is expected to meet end of March 2013.

The Letter of the Presidency can be found here



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