Start Unified Patent Court postponed due to IT issues
December 5, 2022
UPDATED 6/12/22. The start of the Unified Patent Court, which was planned for 1 April next year, has been postponed to 1 June 2023, due to the problems with the access of the UPC’s content management system.
A the UPC announced on its website, the ‘start of the Sunrise Period is postponed for two months. The initial roadmap foresaw 1 January 2023 as the beginning of the Sunrise Period with an entry into force of the UPCA on 1 April 2023. The additional time is intended to allow future users to prepare themselves for the strong authentication which will be required to access the Case Management System (CMS) and to sign documents. Users will need to equip themselves with both, a client authentication (hard device) and a qualified electronic signature. Further detailed information on the authentication is published on this website. Included is a list of providers who have informed the Court that they meet the required technical standards. This is an open ended list which will be amended as additional providers communicate their readiness to the UPC. As strong authentication is required already for the Sunrise Period the initial timeline seems insufficient in view of the legitimate interests of users who have to find a provider and acquire the required authentication tools. As a consequence, the Sunrise Period will start on 1 March 2023 followed by the entry into force of the UPCA on 1 June 2023.’
Over the last months, stakeholders have warned and complained on several platforms they couldn’t secure a functioning access to the UPC’s new Case Management System (CMS).
As Thorsten Bausch wrote on this blog last week: ‘At present, we are far away from such a paradisiacal state; we are still in purgatory or even lower. The current procedure for even getting simple access to the UPC’s CMS is simply a nightmare.’
Bausch pointed out that it is very difficult to acquire the Client Authentication Certificate, needed to access the UPC’s CMS: ‘The trust service providers shown (…) offer a “QCert for ESig”, i.e. a qualified certificate for electronic signature and other certificates, yet NONE of them seems to offer a “Client Authentication Certificate” as required by the UPC. (…) As far as I have been informed, there is exactly one service provider – from Luxembourg! – that seems to offer both certificates required by the UPC to Germans.’
The difficulties in trying to get access to the UPC’s CMS were also discussed in many comments below posts on this blog about the Data exchange agreement between UPC and EPO (Does anyone know how to get a UPC smart card and reader if you are an EPA in one of the non-EU, EPO countries. The list of smartcard providers seems very long and complex, hard to decipher and hard to engage with from outside the EU ,and even inside the EU. Any thoughts? Might this agreement solve this problem for EPAs?), The UPC conference and mock-trial (why is it that the UPC’s IT team has not published a list of the secure devices that they have tested and have confirmed meet their requirements? I am sure that the hundreds of attorney firms across Europe that have been working their way through the list of (more than 200) potential suppliers will be more than a little bit miffed to lean that the IT team that set them the task of searching for needles in a haystack had already located some of the needles … but had chosen not to share that information.’), UPC: More information about access to new CMS (‘This “extra information” is still extremely vague and still places the onus on the users and the providers to figure out how to comply. This is reinforced by the extraordinarily unhelpful and vague “answers” provided on the FAQ page that is linked to from the new document (…)’)
The launch of the UPC is triggered by the German deposit of its formal instrument of ratification of the UPC Agreement with the secretariat of the European Council. The court will open its doors on the first day of the fourth month after this (art 89 UPCA). The deposit was due to happen this month, but the German government had already told Managing IP that the process was under review.
When the court’s preparatory team published the UPC roadmap at the start of October, it stressed ‘that this roadmap reflect the current state of the UPC project and therefore, might be subject to change.’ Still, the postponement of the entry into force is quite an embarrassment, especially in view of the major issues with accessing the UPC’s CMS, which have apparently not been foreseen.
Half November, the EPO announced that: ‘Aligning with the recently published implementation roadmap published by the Unified Patent Court (UPC)’, transitional measures enabling patent applicants to file early requests for unitary effect and requests for a delay in issuing the decision to grant a European patent, would enter into force on 1 January 2023. This will have to be postponed now as well. (UPDATE: On 6 December, the EPO announced the entry into force will not be changed)
So after years of major political and legal setbacks, such as the German constitutional complaints and the Brexit, the bumpy road to the launch of the Unitary Patent system has now been delayed by IT issues.
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Simona Fonzi
"The launch of the UPC is triggered by the German deposit of its formal instrument of ratification of the UPC Agreement with the secretariat of the European Council." Since art89 UPCA says that the top3 in 2012 was containing the UK, can someone could challenge its entry into force?
Russell Barton
Thanks for this. I don't follow this bit about the EPO's measures: "This will undoubtedly have to be postponed now as well." Given that the EPO changed their transitional measures to be independent of German ratification why would they then change them a second time to be dependent again? Seems to me that having some grants deferred for 2 months longer than anticipated is far preferable to informing applicants that cases that are currently eligible for the transitional measure will no longer be so.
Don't pull my leg
Dear Simona, I would say that, at a pinch, replacing UK by IT is defendable as the conditions for entry into force are linked with the deposit of the ratification instrument by the three countries having the most patents valid at a certain date. The problem lies with the protocol on provisional application which still mentions expressis verbis the UK. A joint declaration was announced before the entry in force of the protocol. The protocol has entered into force without the declaration. For some the protocol on provisional application has thus not at all entered into force. The biggest problem remains Art 7(2) UPCA in which the London Section of the Central Division is still mentioned expressis verbis. I can look at and turn Art 31 and 32 VCLT as much as I want, but the provision being crystal clear does not suffer any interpretation. This seems to me a much bigger hurdle as nowhere in the UPCA it has been provided that the duties of the London Section can be provisionally transferred to Paris and Munich. The solution proposed by the staunch supporters of the UP/UPC system would bring a first-year law student to heavily blush. This is to me a must more important problem. I have difficulties to unterstand that national judges having a reputation to lose can hire at such a court. In my opinion this court does not comply with the requirements of Art 6(1) ECHR.