This year looks to be a pivotal year for the establishment of the Unified Patent Court (UPC), the introduction of which will depend on the timely completion of the preparatory work and the required number of ratifications being reached – each of which are thought to be achieved by the middle of 2016. A period of provisional application of at least 6 months will then follow to allow the organizational, financial, and institutional provisions of the UPC Agreement (UPCA) to be applied, meaning the UPCA can enter into force and the Court can become operational by the start of 2017. A Protocol to the UPCA was signed on 01 October 2015, which has allowed some parts of the UPCA to be applied early – but what is left to do in the next year in order for the Court to come into being?
The Preparatory Committee of the UPC has conducted a consultation on the Court fees and is now considering the outcome and working on an adjusted proposal. The Court fees and recoverable cost caps are to be decided at the next meeting of the Preparatory Committee in February 2016.
February and March 2016 will see selection and appointment of Judges. In 2013, a call for expressions of interest in becoming a Judge was publicised and some 1300 candidates responded. However, only 354 of the candidates were considered eligible as legally qualified judges and only 341 candidates were considered eligible as technically qualified judges. Just 20-30 candidates were sent for training at the Judges training location in Budapest, Hungary. About fifty legally qualified judges and fifty technically qualified judges are expected to be appointed during the middle of 2016.
Case Management System
All Court cases will be managed via a web-based, online case management system (CMS). The CMS is currently hosted by T-systems (a subsidiary of Deutsche Telekom) until March 2016, at which time the UPC IT Team in Luxembourg will assume full management of the CMS. The latest beta test site of the CMS was launched in January 2016 to allow for third party testing of the platform. Further development of the CMS will commence in April 2016 on the basis of the feedback received from third parties during the testing period.
Countries hosting a local, regional or the central division of the Court have affirmed their intention to have the appropriate facilities (premises, furniture, IT infrastructure. and administrative support) in place before the entry into force of the UPCA. As at February 2016, the Court of Appeal has confirmed a location in Luxembourg, the Nordic-Baltic Regional Division has settled on a location in Stockholm, the Central Division has confirmed an address in Munich, and German Local Division locations have been finalised in each of Munich, Mannheim, Dusseldorf, and Hamburg.
The Preparatory Committee of the UPC has agreed the Rules on Mediation. The Patent Mediation and Arbitration Centre will provide mediation services for the settlement of disputes relating to European patents and Unitary patents. Mediation services are available by request and require a non-refundable administrative fee for opening the matter. Under the Rules, a patent cannot be revoked nor limited through mediation. Finalisation of the Rules is to be completed through 2016.
Applications to opt-out patents and applications from the exclusive jurisdiction of the Court will be made via the Court case management system (CMS). It will be possible to file opt-out applications during the period of provisional application so that opt-outs will be effective from the first day of entry into force of the UPCA. Finalisation of the Opt-Outs is to be completed through 2016.
Thirteen ratifications are needed for the new Court to start functioning, including those of France, Germany, and the UK. To date, nine countries (including France) have ratified the UPCA, with Finland becoming the latest country to ratify in January 2016. This means that only four more signatory states are required in order for the UPCA to come into force. Although the remaining signatory states are expected to ratify during 2016 (Germany has just published draft legislation for ratification to the UPC and establishment of the Unitary Patent), certain countries might prove to be a hurdle to ratification. Primarily, despite the necessary draft legislation having now been laid in Parliament, ratification by the UK could be delayed in the light of a referendum to decide withdrawal of the UK from the European Union – the so-called Brexit.
Although it appears that there are a number of outstanding matters to be completed before the Court can come into being in the next year, it is certain that 2016 looks to be a decisive year for the establishment of the new European litigation system.
Check back regularly to ensure you are on the right track for the UPC and to stay up-to-date with our series on the Court.
If you have any questions about the UPC and the affects it will have on your business, please contact Donal M Kelly PhD, European Patent Attorney.