Administrative Committee confirms Unified Patent Court will open doors on 1 June 2023
February 14, 2023
The start date for the Unified Patent Court remains 1 June 2023. This has been confirmed to Kluwer IP Law by Johannes Karcher, acting chairman of the Administrative Committee.
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If the court is to open in June, it means that Germany will have to complete the UPCA ratification procedure and deposit its instrument of ratification with the secretariat of the European Council this month. No information has been shared about an exact date. The UPCA enters into force on the first day of the fourth month after the deposit of the thirteenth instrument of ratification (art. 89 UPCA).
Johannes Karcher declined to comment on a JUVE Patent report last week, that ‘UPC states have agreed on Milan as the third seat of the Central Division. Several well-informed sources have reported that the states gave the go-ahead to Milan on Wednesday and that this is to become effective at the UPC start date. Milan is currently the only contender to succeed the former London divisions and, according to JUVE Patent information, has the support of Germany, among others.’
Training activities
Last week the court also published an update on training activities. ‘A first training, which took place in Budapest from 17 to 21 January 2023, was dedicated to appointed judges of the Court (see also news here). With the participation of 82 judges, including the Presidium, as well as the newly appointed Registrar and Deputy-Registrar, this intensive five-day event provided an excellent opportunity for a first general meeting and exchange.
The focus of the training - organized in collaboration with the European Patent Academy and with the support of the Hungarian Intellectual Property Office - was on the Rules of Procedure (RoP), with panel presentations and group discussions on the common approach of the Court, cooperation among legally and technically qualified judges, and a presentation of the case management system (CMS). Panel speakers included senior judges of the Court with extensive patent experience, as well as senior litigators and members of the RoP Drafting Committee. The last two days of the training took the form of a mock trial.
A further training, focusing on the internal rules and practice of the Court, took place from 31 January until 2 February 2023, also in Budapest. With the participation of around 50 staff members from various divisions of the Court and with functions ranging from clerk, to IT expert, this training provided a solid overview of various procedural rules and of CMS-related proceedings, which were presented by experts and judges of the Court.’
At the end of February and early March more training will be held, focusing on the functioning of the Court’s CMS.
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Joris Verhelst
"Milan on Wednesday and that this is to become effective at the UPC start date." There is no source of EU law that says Milan can take the place of London, what they are doing there is again abusing the law, using the withdrawal agreement as an excuse.
DXThomas
It still remains a mystery what could be the legal basis for amending Art 7(2) UPCA in view of the crystal clear mention in it of London as section of the Central Division. The fact that Milan is now mentioned leads to suppose that the "provisional" allocation of the duties allotted to London to Paris and/or Munich and later to another city was a too hot potato. It is difficult to find a legal basis in Art 87(2) as suggested by some proponents/supporters of the UPC since this article has a totally different function and is not mentioned in the PPA. A declaration under Art 31 VCLT does not appear helpful as the wording of Art 7(2) UPCA does not lead to any misinterpretation. That the UPCA does not provide an exit clause has never been considered and the withdrawal of the UK through a “Note Verbale” accepted by the “Depository”. This is a major problem, but as all problems it has been carefully ignored. The fact that the acting chair of the Administrative Committee refuses to take position on a possible allocation to Milan shows that either he does not feel easy about the situation, or that the Administrative Committee is preparing a surprise, not to say a coup. Whatever is decided by the Administrative Committee, the decision will be judged in the light of the applicable legislation, including the VCLT. It better foots on a solid basis.
Patent robot
The PPA and the PAP were created with the clear intent of "fixing" some aspects of the UPCA, otherwise it could not have entered into force. What if all UPC contracting States signed a "Brexit Protocol" which "fixes" the UPCA, the PPA and the PAP? For example, the "Brexit Protocol" could contain such a measure: "If a seat of the central division under Art. 7(2) is not available at the entry into force of the Agreement, this seat shall be temporarily allocated to...".
Martina Claessens
Revision according Art 87(2) UPCA: "2. The Administrative Committee may amend this Agreement to bring it into line with an international treaty relating to patents or Union law" The UK withdrawal agreement is part of Union law, but it does not say that the court of London has to move to Milan. National parliaments have signed for London, not Milan. The Administrative Committee is not a law maker and should not be.