After the ratification of the Unified Patent Court Agreement (UPCA) by the United Kingdom on April 26th, France has just adopted new Order n°2018-341 of May 9th, 2018, regarding Unitary Patents and the Unified Patent Court (the “Order”).
While this new law intends to amend the French Intellectual Property Code in view of the upcoming changes with Unitary Patents (“UP”) and the Unified Patent Court (“UPC”), it is supposed to have a wider impact on patent law in France.
The UK ratified the Unified Patent Court Agreement (UPCA) on 26th April 2018 despite the Brexit vote and the currently ongoing negotiations for the UK to leave the UE.
Only the German ratification is now missing for the system to go alive, as France has already ratified the UPCA. However, Germany’s ratification has been further delayed since the constitutional complaint against the ratification of the UPCA (End of March 2017). If the German Federal Constitutional Court (FCC) decides not to admit the complaint, the German ratification procedure can resume (within approx. 6 months), still possibly before Brexit day (29th March 2019). If the FCC admits the complaint Decision, the decision will not be expected before end 2019 (may be even much later if the FCC refers the matter to the European Court of Justice), and the UK will have left the EU by that time.
According to the website of the Council of the European Union, Lithuania has completed its ratification formalities on 24 August 2017. This is the 14th ratification following that of Estonia which joined the unitary patent system on 1 August 2017.
To be complete, the unitary patent system requires 13 ratifications, including France, Germany and the United Kingdom. France is already part of the system since 14 March 2014. However, according to the Preparatory Committee, the United Kingdom and Germany still have some hurdles to overcome before the unitary patent system enters into force (you can see our previous posts on the situation in the UK and Germany)
Still, the Preparatory Committee is confident that the UPC will come into force around January 2018.
The 5th conference on the Unitary Patent and the Unified Patent Court, organized annually by Premier Cercle in association with the EPO, was held in Munich on July 5, 2017.
First, an overview over the state of advancement of the implementation of the Unitary Patent and the UPC from a technical, legal and financial point of view was given by a member of the Committee in charge of the Implementation of the Unitary Patent Protection. It appears that the implementation is completed at all levels, and that the system is ready to launch as soon as the ratification process has been completed.
This overview was followed by a discussion on the selection of the judges for the UPC. The first round of selection is now completed and 236 candidates were selected among initially 841. These candidates will now be interviewed individually to select a total of 100 judges, among which 50 technically qualified judges and 50 legally qualified judges. The overall impression conveyed by the Chairman of the Advisory Panel on the Selection and Training of Judges for the Unified Patent Court, Sir Robin Jacob, was that the quality of the candidates was very promising.
The process of ratification of the UPC by the UK seems to be back on track, following the recent UK elections.
Orders on Privileges and Immunities for the Unified Patent Court were laid in Parliament under the International Organisations Act 1968 today (Click Here and Click Here). Separate legislation will be laid in the Scottish Parliament in due course. The Orders are affirmative orders, which means they will be debated in each House of Parliament. Separately the Scottish Order will be debated in the Scottish Parliament. They will also require Privy Council approval.
Once this legislation has been passed the UK will be able to formally ratify the UPC Agreement. This is the final legislative step in the UK’s ratification of the Unified Patent Court.
Alexander Ramsay, the preparatory committee Chairman also released an update (Link to Unified Patent Court Website) concerning the progress made by the UK and Estonia towards ratification of the UPC. The latest development in the UK is considered by the Committee as a “firm intent and commitment on the road to ratification” while Estonia is also taking the last steps towards formal ratification.
However, it should not be forgotten that three additional approvals of the PPA including Germany are still necessary in order for the provisional period to begin. The Chairman is “hopeful the situation regarding the constitutional complaint in Germany will be resolved rather quickly and therefore [he is] hopeful that the period of provisional application can start during the autumn 2017 which would mean that the sunrise period for the opt out procedure would start early 2018 followed by the entry into force of the UPCA and the UPC becoming operational.”
