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December 2017 launch envisaged for new Unified Patent Court

A December 2017 launch date is envisaged for the new Unified Patent Court (UPC), according to the body tasked with laying the foundations for the new judicial system to take effect.17 Jan 2017

The UPC Preparatory Committee said, though, that the timetable may slip if "the necessary ratifications" of the UPC Agreement (UPCA) are not obtained, or if a protocol which would allow businesses to apply to opt out European patents from the jurisdiction of the UPC before the UPC takes effect is not implemented in time.

The statement was issued by the Preparatory Committee on Monday.

The Committee said: "The Preparatory Committee is now working under the assumption that the provisional application phase (PAP) will start end of spring 2017, presumably in May, and that the Agreement on the Unified Patent Court (UPCA) can enter into force and the Court become operational in December 2017."

"The PAP will mean that the organisation as such will be established including the start of operation of the UPC's formal governing bodies. It will also mean that judicial interviews can begin and appointments eventually confirmed. The start of the sunrise-period for the possibility to opt out European patents is now planned for early September 2017 which will provide a minimum of three months for patent holders who wish to opt out their patents to do so before the Court becomes operational," it said.

"The above timetable is conditional and provided with the clear disclaimer that there are a number of factors that will dictate whether it is achievable. The most important factors in meeting these dates is the necessary ratifications of the UPCA and accession to the protocol on provisional application. If these are not achieved the time-plan will be disrupted," it said.

The UPC, when established, will serve as a new judicial framework to underpin a new unitary patent system. Businesses will be able to apply to the European Patent Office for unitary patents which, if granted, would automatically confer on them patent protection for their inventions which will apply across every country that gives recognition to the unitary patent regime, which at the moment looks set to be almost every EU country.

The existing European patent framework enables businesses to obtain EU-wide patent protection, but only after patents are given ratification in each EU country, which can involve significant translation costs for businesses.

Disputes over the validity and infringement of unitary patents, and European patents that are not opted out of the UPC system during a transition period, will be resolved before the new courts.

Most EU countries signed the UPC Agreement in 2013, signalling their backing for the UPC to be established. However, that Agreement needs to be officially ratified by at least 13 EU countries, with that number including France, Germany and, as it stands, the UK, for the Agreement to take effect. France is one of the 11 countries to have completed ratification to date.

The UK government said in November 2016 that the UK will ratify the UPC Agreement, despite the country voting to leave the EU. However, there is uncertainty over the UK's participation in the new patent regime post-Brexit as the UPC Agreement currently requires countries participating in the new unitary patent and UPC system to be EU members.

UK minister for universities, science, research and innovation Jo Johnson suggested told a UK parliamentary committee that questions of the UK's long term participation in the UPC, and the London seat of the UPC, which would specialise in resolving disputes over patents in the life sciences sector, would be settled as part of broader "Brexit negotiations" between the UK and EU.

Patent law specialist Deborah Bould of Pinsent Masons, the law firm behind Out-Law.com, said businesses would welcome the indicative timetable that has been outlined.

"News of the provisional launch date is good news for businesses, who can now prepare with greater certainty for the beginning of what is a major new patent regime in Europe," Bould said. "Although a lot of work has been carried out behind the scenes to prepare the foundations for the UPC to begin operating, the likely launch date had not been clear as it hinges on completion of those preparatory works. Businesses now need to start preparing for the new regime."

"The major question that remains is whether the UK will participate in the unitary patent and UPC system post-Brexit. There is at least one industry body that is lobbying government in a bid to emphasise the importance of UK participation and ensure that it is not conceded by UK officials amidst broader horse-trading on Brexit issues with EU counterparts," she said.