The Unified Patent Court (UPC) Preparatory Committee
announced this week that it is now working on "the assumption
that the Provisional Application Phase (PAP) will start end of
spring 2017, presumably in May, and that the Agreement on the
Unified Patent Court (UPCA) can enter into force and the court
become operational in December 2017."
What does this mean?
The commencement of PAP means that the UPC will be established
as a functioning legal body, and that practical preparations for
the opening of the UPC can be taken forward. These include the
UPC's formal governing bodies commencing operations, judicial
interviews taking place, and judicial appointments being made and
Provisos to the UPC start date
However, the timetable comes with the "clear disclaimer
that there are a number of factors that will dictate whether it is
achievable". The most important of these are the necessary
ratifications of the UPCA (including ratification by the UK), and
accession to the Protocol on Provisional Application. If these
ratifications are not achieved, then this timeline will be
The UK's announcement of its intention to proceed with ratifying the UPCA has removed
the most significant obstacle to UPC implementation, and Germany
has always been expected to ratify shortly after the UK does. In
principle, therefore, a December start date for the UPC looks
Practical points for patent owners
The UPC Preparatory Committee specifically announced that the
start of the sunrise-period for opting out European patents from
the UPC system will be in early September 2017. This will provide a
minimum of three months for patent owners who wish to opt out their
patents to do so before the UPC becomes operational in December
This is the first time even an indicative date has been given to
the start of the opt-out sunrise period. Patent owners should
therefore prioritise their analysis of their portfolios to identify
which patents should be opted out, if any.
Patent owners should also be reviewing patent licences and the
extent to which licensees can unilaterally litigate in the UPC
without needing the patent owner's permission, as commencing
litigation in the UPC will subject the patent to the UPC's
jurisdiction. Any such licences will need to be amended.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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