Signing of the UPC Agreement a milestone?

On 19 February 2013, officials from 24 European Member States signed the Unified Patent Court agreement establishing a Unified Patent Court (“UPC Agreement).[1] When you read this, Bulgaria will probably have signed as well. Poland and Spain did not sign but may still accede to the Agreement at a later date.

Opening the signing ceremony, Mr Richard Bruton, Irish Minister for Jobs, Enterprise and Innovation, said: “The signing of the Unified Patent Court is a truly historic moment, as it will give enterprises greater access to patent protection at European level, and make enforcement of patents affordable. It is an important milestone in the continued development of the single market – a priority for the Irish Presidency”.[2] The Council’s press release noted that the next step is the ratification by the national parliaments and that “[a]ll the necessary decisions (designation of committees, budget, appointment of judges and president, recruitment of staff, facilities, etc.) should be adopted in a timely manner so as to enable the first registration of a European patent title with unitary effect in spring 2014”.

Reading the above information, I wondered whether the signing the UPC Agreement is indeed such a “truly historic moment” and “milestone”. Can we really expect the first patent case before the UPC in the spring of 2014?

Now that the Agreement has been signed, the ratification process by national parliaments can start as the Council also mentioned in its press release. The UPC will not enter into force until at least 13 Member States, including the three Member States with the highest number of European patents (Germany, France and the United Kingdom) have ratified the Agreement.[3] Ratification is not an easy process and history teaches us that in Europe nothing is certain, especially with the prospect of a British referendum on Europe.[4] It remains to be seen whether the British will be prepared to surrender yet more powers − more particularly judicial powers − to a new European body.[5] Another point to consider is that the UPC Agreement will not enter into force until the Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters[6] has been amended to reflect the UPC Agreement. The Regulation itself was recently amended as well.[7] And once the UPC Agreement has entered into force, there will be the transitional provisions to deal with.[8] During the seven-year (!) transitional period following the Agreement’s entry into force parties may still initiate proceedings concerning European patents before the competent national courts. The UPC Agreement also provides an opt-out procedure: holders of or applicants for European patents may opt out of the unified litigation system until one month before the end of the transitional period so that the patent in question does not fall within the UPC’s jurisdiction. In that case, the enforcement and validity of patents will remain the exclusive jurisdiction of national courts.

In conclusion, the signing of the UPC Agreement is a major and necessary step towards a unified patent court, however, we still have a long way to go. In the present economic conditions with consumer confidence declining even further, a success story for Europe is more than welcome. That may explain the euphoria surrounding the signing of the Agreement. It will, however, take quite a long time before the first patent case will be brought before the UPC.

I consider it rather unlikely that this will be already in 2014.

András Kupecz, Simmons & Simmons Amsterdam

[1]       See the press release . The full text of the UPC Agreement can be found here and the text of the two council regulations establishing enhanced cooperation for unitary patent protection and its translation arrangements were published in the Official Journal of the European Union L361 of 31 December 2012.

[2]       Quote from the Council’s press release.

[3]       Article 89 UPC Agreement.

[4]       The 1975 Community Patent Convention never entered into force as it was not ratified by enough countries.

[5]       See Brian Cordery’s contribution on the Kluwer Patent Blog  

[7]       See the column ‘Rechtshandhaving, procesrecht en IPR’ in this edition. See also “Unified Patent Court, some Thoughts on Territorial Aspects“.

[8]       Article 83 UPC Agreement. Subsection 1 provides for the seven-year transitional period and subsection 3 lays down the opt-out procedure.

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