Finally, the Unified Patent Court becomes a reality

The Unified Patent Court has today, the 19th January 2022, officially come into existence as an international body, following the deposit by Austria of its ratification of the protocol on the provisional application of the UPC Agreement. 

Technical and legal judges will now be appointed and trained, court buildings fitted out and IT systems completed. A lot of preparatory work has already been completed, such as the drafting of detailed rules of procedure for the new court. However, it cannot be said with any certainty how long the provisional application period will last. It appears that it is likely to be at least 6 months, perhaps nearer to a year - the UPC Preparatory Committee's website indicates 8 months. As well as completion of the administrative preparations, the participating countries will need to agree where the new location will be for the branch of the court’s Central Division that was originally to be in London, now that the UK is now longer participating in the UPC. Various options have been suggested, including locating the branch in Italy or the Netherlands, or splitting the work of the branch between Paris and Munich, where the two other branches of the Central Division are already located.

Once everything is ready, Germany will deposit its instrument of ratification of the UPC Agreement itself, which will trigger the commencement of the “sunrise period”. This will last for 3 to 4 months. It is during the sunrise period that European patent proprietors will be able to register their “opt-outs” if they do not wish their European patents to be subject to the new litigation system.

For European litigators and patent attorneys, it is exciting to be at the birth of what promises to become a major forum for resolving EU patent disputes.  However, it will take years to see whether the UPC delivers the hoped-for benefits for industry and patent litigants.