On 2 December 2021, Austria became the thirteenth EU country to pass the “protocol on provisional application” (PPA), paving the way for the UPC to come into force. It is now most likely that the Unitary Patent Court (UPC) will open its doors – and EU Unitary Patents will become available – next year.
The PPA allows most of the necessary practical provisions to be arranged, such as budgeting and the recruitment and training of UPC judges. This period of practical preparation, known as the “provisional application period” (PAP), will begin when Austria formally ratifies the protocol in the next month or so.
Article 3(1) of the PPA requires ratification by 13 signatory states for the PPA to enter into force. However, Article 3(1) PPA also requires the 13 states to include Germany, France and the United Kingdom – which withdrew following Brexit. However, there appears to be agreement among the remaining signatory states to construe “the United Kingdom” to mean “Italy” (which, discounting the UK, is the EU state in which the third highest number of European patents were in force in the year preceding the agreement). This legal fiction is endorsed by the UPC Preparatory Committee, who state that the approach is ‘in line with public international law’.
A related stumbling block is the fact that the UPC Agreement itself names London as one of the seats of the UPC Central Division, alongside Paris and Munich. The London seat was to hear Pharmaceutical and Biotech cases. Rome has officially advanced a claim to this seat, but Amsterdam, Paris and Munich will reportedly vie for this prestigious prize.
Germany is poised to ratify the UPC Agreement, which will bring it into force, but has indicated that it will only do this when the practical preparations are sufficiently advanced. Many commentators predict that a period of around eight months will be needed for the UPC to become ready to finally open its doors. It remains to be seen whether squabbles over the Biotech/Pharma seat, or some other unforeseen obstacle, will derail that timeframe. If not, the first EU Unitary Patents will be registered in the summer of 2022.
