AUSTRIAN PARLIAMENT CHOSES TO RATIFY THE PAP-PROTOCOL

Yesterday, December 2nd, 2021, the Austrian Bundesrat (second chamber of the Austrian Parliament) approved unanimously the Protocol to the Agreement on a Unified Patent Court on provisional application (the PAP-Protocol) of the Unified Patent Court Agreement (UPCA).

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The Protocol on the Provisional Application of the UPC Agreement

The Protocol to the Agreement on a Unified Patent Court on provisional application (the PAP-Protocol) was initially signed on 1st October 2015 to establish a Phase of Provisional Application (PAP)  to ensure « a smooth transition into the operational phase and ensure the proper functioning of the Unified Patent Court before the entry into force of the Agreement on a Unified Patent Court ».

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The current state of play towards the set up of the Unified Patent Court

The Unified Patent Court Agreement will enter into a provisional preparatory stage once 13 signatory states of the Agreement including Germany, France and the United Kingdom and having ratified said Agreement have ratified or expressed their consent to be bound by the Protocol on Provisional Application (A.3(1) of the Protocol).

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The German Federal Government officially ratified the UPC Act of Approval on August 13th.

The publication of the law in the Federal Law Gazette finally puts an end to the legal complications that have been blocking the german ratification process and, consequently, the establishment of the Unified Patent Court (UPC).

But this does not mean that the UPC can finally start to operate.

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German Federal Constitutionnal Court’s decision

By order of June 23, 2021, the German Federal Constitutional Court (FCC) rejected two applications for preliminary injunction against the Act of Approval that was adopted on December 18, 2020, for the purposes of ratifying the Agreement of 19 February 2013 on a Unified Patent Court (UPC Act of Approval).

This decision was highly expected because the process of ratification of the UPC Act of Approval and thus, the establishment of the UPC has been delayed until the ruling of the Court.

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