Germany and Slovenia ratify Protocol on Provisional Application Unified Patent Court
September 28, 2021
Germany and Slovenia have ratified the Protocol on the Provisional Application (PPA) of the Unified Patent Court Agreement.
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In a press statement, the German minister of Federal Justice, Christine Lambrecht, said: “With this step we have come a decisive step closer to European patent reform, which is so important for innovative companies in Europe. The Unified Patent Court will come. For German industry, which holds around 40 percent of all registered European patents, better protection of their inventions in the European internal market is of particular importance. This also applies to small and medium-sized companies that make a significant contribution to the innovative potential of our country. "
Slovenia, Austria
In Slovenia legislation ratifying the PPA came into force on 24 September 2021 when it was published in Slovenia’s Official Gazette. Austria is also expected to ratify the PPA shortly. As the UPC Preparatory Committee reported, apart from Germany, “two further ratifications of the (…) Protocol are necessary to enter the final phase for the set-up of the Unified Patent Court. It is expected that the required ratifications will soon be attained triggering the implementation of the UPC as an international organization.
In this phase of provisional application will take place e.g.: the adoption of the secondary legislation and the Court’s budget, the completion of the electronic case management system including stress testing, the process to select and appoint the judges of the Court. When it is clear that the UPC will be operational upon the entry into force of the UPCA the final ratification of the Agreement by Germany can take place serving as a “gatekeeper” for Member States to ensure a proper process.”
EU Competitiveness Council
During the EU’s Competitiveness Council of 29 September 2021, the state of play of the UPC project will be discussed. Last week a note on this issue was published by the presidency, which makes clear the UPC Preparatory Committee expects the provisional application period to last from six to ten months. About the start of this period, the note says: “Slovenia envisages to deposit the ratification instrument for the PPA together with its ratification instrument for the UPCA. Austria, which was the first Member State to ratify the UPCA, has submitted a draft law for the ratification of the PPA to the national parliament in July 2021. Once the ratifications of the PPA by Germany, Slovenia and one other participating Member State are completed, the provisional application phase will start.”
EPO Select Committee
According to the note, the EPO Select Committee, which is in charge of preparing for the Unitary Patent, will resume its work soon as well: “In view of the entry into operation of the unitary patent system, the relevant preparatory bodies, namely the Select Committee of the Administrative Council of the European Patent Organisation and the UPC Preparatory Committee , stand ready to resume their activities to ensure that still outstanding preparatory work is concluded in a timely manner. To that end, the next meeting of the Select Committee is foreseen for 14 October 2021.”
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Andre Frans
Brexit implications suddenly vaporized, why this question is not addressed in the Council document?
Patent robot
Copied from the EU Council website today: Agreement on a Unified Patent Court (UPC) United Kingdom: Withdrawal of ratification received on, and effective as from, 20/07/2020
Campinos
"This also applies to small and medium-sized companies that make a significant contribution to the innovative potential of our country." Court fees of the UPC for cancelling a patent are 20.000EUR. In Czech Republic, they are 80EUR. Lawyers fees will also be on the rise, due to the tight agenda of 12 months imposed by the UPC. Refundable amounts are too low, so even if you are in yoru own right, you won't be fully refunded. So much the "it's also good for SMEs". Mdme Lamberts has a different calculator than mine.
Concerned observer
An interesting question will apply to judges that might be recruited during the provisional application period. That is, will they be prepared to accept employment from a court that, strictly speaking, does not have any legal basis (and hence is not a bona fide legal entity)? Of course, accepting an offer of employment by the UPC under these circumstances would (or at least should) disqualify the judges concerned from hearing any cases that challenge the basis (under international law) for the UPC. This is because any party raising such a challenge would be able to point to the judge's acceptance of employment by the UPC as providing objective justification for a fear of partiality on the point of law in question. Thus, it will be impossible for any judge of the UPC to handle, in an objectively unbiased manner, any challenges to the legitimacy of the UPC. Pray tell, which courts and judges would be able to handle such challenges in an unbiased manner? There is absolutely no doubt that such challenges will be raised. So is this another reason to conclude that, as currently constructed, the UPC suffers from fundamental and irredeemable flaws ... including an impossibility of demonstrating compliance with the Art 6 ECHR rights of litigants to an "independent and impartial tribunal established by law"?