The Agreement on a Unified EU Patent Court (UPC Agreement) has been ratified by Germany following legal challenges in recent years over the constitutionality of the ratification bill.

The UPC Agreement provides for the establishment of a Unified Patent Court (UPC) as a court common to all participating Member States, with exclusive competence in respect of European patents and European patents with unitary effect.

The UPC will replace all individual enforcement courts in participating Member States and is intended to remove the need for and the cost of multi-jurisdictional patent disputes.

Protocol on Provisional Application

German ratification of the legislation brings the establishment of the UPC one-step closer, subject to the consent of two further participating Member States for the Protocol on Provisional Application (PAP-Protocol) to enter into force, and the provisional application period (PAP) to begin. These additional ratifications are expected to take place in the autumn of this year.

Once the PAP-Protocol comes into effect, the UPC will have legal capacity and organisational capability. The PAP is expected to last approximately eight months, a period during which various preparations will be made so that the UPC can become operational. The recruitment of judges and the establishment of the court’s governing bodies will take place during this final phase of the UPC’s set-up.

UPC to be operational by mid-2022

As soon as the preparatory work has progressed sufficiently and participating Member States are satisfied that the UPC can commence operations, the final outstanding instrument of ratification of the UPC Agreement will be deposited by Germany. The UPC Agreement will then enter into force on the first day of the fourth month after this instrument is deposited.

Once the UPC Agreement enters into force, the UPC will be operational and available to the users of the European patent system, and it is currently estimated that operations will commence around mid-2022.

Ireland’s position

Ireland has been a signatory to the UPC Agreement since 2013, however has yet to ratify it. As participation in the UPC is not mandated by membership of the EU, Ireland is required to hold a referendum in order to transfer jurisdiction for patent litigation from the Irish courts to the UPC.

The Irish Government has said that the country will move forward with the ratification process once there is greater clarity on the timeframe for the UPC Agreement coming into effect. It would appear that the clarity needed may now have emerged!