February 2023 Germany has ratified the UPC Agreement
The implementation of the Agreement on a Unified Patent Court has been a slow process, with many unexpected hurdles and delays being encountered along the way. However, it seems the Unified Patent Court is now ready to start taking cases, and thus Germany has recently ratified the UPC Agreement, setting into stone 1 June 2023 as the date on which this long-awaited court will finally open for business.
We reported in our article of December 2022 that the start date of the Unified Patent Court (“UPC”) had been delayed yet again, this time in view of some difficulties many users were having with acquiring the authentication devices required to access the UPC’s Case Management System.
Those who have been following the development of the UPC will know its start date has been delayed many times since the Agreement on a Unified Patent Court (the “UPC Agreement”) was concluded by the participating European Union Member States in 2013, and could be forgiven for thinking that this new court may never open for business.
Germany is one of the “gatekeeper” countries required to ratify the UPC Agreement before this treaty can come into force. Moreover, Germany is the final gatekeeper country to ratify the UPC Agreement. Thus, Germany postponed depositing its instrument of ratification of this treaty until the participating Member States agreed that the UPC was ready to start operating because all remaining issues had been resolved. It is therefore very significant that on 17 February 2023 the German Ministry of Justice issued a press release stating that the German government has now formally ratified the UPC Agreement.
German ratification was the last formality that needed to be completed to trigger the start of the so-called “sunrise period”, which will now begin on 1 March 2023. The sunrise period is due to last for 3 months, meaning that the UPC will start hearing pan-European patent infringement and revocation actions on 1 June 2023.
For those hoping to make the most of the UPC to enforce their patents across the European Union and/or to challenge the validity of their competitors’ patents, 1 June 2023 clearly cannot come soon enough. However, for those more wary of this new system, 1 June 2023 represents the date by which they should have “opted out” their European patents and patent applications from the jurisdiction of this new court, since opting out by this date avoids any risk of being locked into the new system by a third party starting an action in relation to that patent/application on the first day of the UPC opening.
Therefore, whether the proprietors of European patents and the applicants of European patent applications see the UPC as friend or foe, action should be taken now to get ready for the changes coming to European patent practice later this year.
If you are interested in making use of the UPC for your European patent portfolio, or if you are concerned about what the opening of the UPC will mean for you, then Schlich would be happy to work with you to make sure you are prepared for the opening of this new court.
