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UPC Update – October 2017

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IMG_8533-1Autumn has officially arrived and so, as we get stuck into another academic year, IPcopy thought we’d quickly take stock of where we are with the unitary patent project. Since our last update back in July it seems like we’ve had a fair amount of news but little in the way of progress.

UPC Case Management System – Sunrise Configuration

The case management system for the UPC has been updated to the “sunrise configuration”. This is a cut down version of the CMS that covers the process of registering to be a UPC representative and the opt-out/withdrawal of an opt-out process. Users who previously had accounts on the test site of the CMS will need to re-register at https://cms.unified-patent-court.org/login in order to get access to the sunrise version. As before users can carry out mock actions on the CMS. IPcopy will be taking a closer look at this new version of the CMS in the near future.

Ratification Update

Since July, two further countries – Estonia and Lithuania – have ratified the Unified Patent Court Agreement to bring the total number of countries to have deposited their instruments of ratification to 14. The Unified Patent Court website suggests in their most recent update that if ratification processes proceed to plan then there may be close to 20 countries in the unitary patent system when it goes live.

The plan however hinges, of course, on the ratification of the UPCA by the UK and Germany where matters are proceeding in a less than optimal way……

UK Ratification Progress

The UK continues to limp towards the ratification finish line despite the heavy damage inflicted by the Brexit shambles negotiations and the oh-so-pointless General Election. The remaining UK ratification requirements are the approval of Immunities and Privileges Orders in both the Scottish and Westminster Parliaments and the signing of the UK’s ratification letter.

The Scottish Order was laid before Parliament at the end of August and is making its way through the required committee considerations.

The Westminster Order has also been laid before Parliament but since we’ve recently had the Party conference silly season (where we were encouraged to try and imagine a freakish scenario where Vince Cable becomes PM, watched the Labour party celebrate winning the General Election by coming second and took Set Building 101 with Theresa May) we are waiting for the committee stages to get back underway following the parliamentary recess.

The ratification process in the UK may pick up again at any time and so it’s possible we could be done and dusted by Christmas. Maybe.

German Ratification Progress

All of which leaves us with Germany and the pending challenge in the Federal Constitutional Court of Germany. At the time of our last update not much was known about either the identity of the challenger or the nature of the challenge.

However, the German blog JUVE recently identified Dr Ingve Stjerna as the complainant in this case (though to date IPcopy is not aware that Dr Stjerna has actually admitted this fact). The challenge covers a number of grounds, namely issues with transfer of sovereign powers, issues with the legislative powers of the UPC, issues with UPC judges and an incompatibility of the UPC with EU law (see more details here).

The Bird & Bird TechBirdNL Twitter account has reported that the German Court has set a date of the end of October 2017 [*Note: see the update below] by which comments on the complaint should be received.

We also understand from the Twitter account of the JUVE Head of Law, Mathieu Klos, that somewhere in the region of 22 parties have been approached for comment:

Following the October deadline the German court will decide on admissibility of the complaint. [*UPDATE 23.10.17 – Bristows are reporting that the deadline for observations has been extended until the end of 2017]

To IPcopy’s mind the German challenge seems to be a bigger issue than had been suggested initially by a number of UPC supporters. The Court seems to be fully assessing the appeal and, in the event that they find it admissible, it seems the start date for the unitary patent system could be significantly delayed until the case is dealt with. And, of course, we’re assuming here that the case will eventually be dismissed which I guess shouldn’t be assumed at this stage.

Unitary Patent and UPC Start Date

All of the above makes it somewhat difficult to predict the start date of the UPC. Whereas a couple of months ago we were looking forward to the Court opening its doors in early 2018 it now seems likely that there will be a significant delay. With a provisional application phase of 6 months expected it would seem that the earliest the system could go live would be the back half of 2018 though IPcopy thinks it’s more likely that we’re looking at 2019. All of which makes it a little tricky to advise your clients.

It is noted that the Unified Patent Court website was updated recently and all but admitted the above when it said “it is now difficult to predict any timeline”.

Mark Richardson 17 October 2017



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