Get prepared for a breathtaking fall sunrise
In practice, the UPC Agreement setting up the UPC is to enter into force the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession, including France, Germany and the UK.
As a further unforeseen development of the setting up of the UPC, the United Kingdom voted “Brexit”. This Brexit has become more tangible as the UK has notified withdrawal from the EU under article 50(2) of the Treaty on European Union on March 29, 2017.
Despite the great uncertainties created by Brexit, rumors say that the UK is willing to ratify the UPC Agreement in spring 2017. Besides, Germany is apparently prepared to do so in summer 2017. This would trigger start of the UPC at the end of year 2017 or the beginning of year 2018.
Before start of the UPC, these ratifications would trigger immediate entry into force of the Protocol to the UPC Agreement signed by the Contracting Member States on October 1st, 2015.
The UPC has to be fully operable at the date the UPC Agreement enters into force.
A Preparatory Committee was set up by the Contracting Member States to manage the five following aspects: human resources, facilities, development of the Case Management System (CMS), financial aspects and legal framework.
As regards human resources, the UPC will consist of a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance will comprise a central division with seat in Paris and sections in London and Munich as well as regional divisions and local divisions located in the Contracting Member States. The Court of Appeal will be located in Luxembourg. Judges of the Court of First Instance and of the Court of Appeal will comprises legally qualified judges and technically qualified judges.
The Preparatory Committee launched a pre-selection of candidates to set up a provisional list of suitable candidates for participation to a training program. The Preparatory Committee then launched the recruitment of the judges, with applications to be filed by July 4, 2016. The Preparatory Committee shall now notify those who have applied to become judges of the Court on the next stage of the recruitment procedure.
As stated in the Statute of the UPC Agreement, which is an Annex to the UPC Agreement, judges are to be appointed to ensure the best legal and technical expertise and a balanced composition of the Court on as broad a geographical basis among nationals of the Contracting Member States. Judges of all Contracting Member States shall thus be appointed.
The Statue of the UPC Agreement also provides for a staff including officials and other servants of the Court for assisting the President of the Court of Appeal, the President of the Court of First Instance, the judges and the Registrar.
Concerning facilities, some foreseen divisions of the UPC including Germany, Italy, Luxembourg and United Kingdom have already confirmed their locations.
On the IT side, a beta CMS has been developed and user may already create account to familiarize themselves with the future CMS.
As regards legal framework, draft Rules of Procedure, a draft Code of Conduct for the professional representatives and a draft decision on the scale of recoverable costs have been prepared.
After this practical phase of preparation of the UPC, the Preparatory Committee as indicated by communication of March 15, 2017 that it is ready for the provisional application of the UPC Agreement.
The intensive work done by the Preparatory Committee was only… preparatory. No judge was appointed so far. Besides, the Rules of Procedure, the Code of Conduct for the professional representatives and the decision on the scale of recoverable costs are only drafts but are not officially adopted. No local or regional division was formally set up.
Simply, the Preparatory Committee was not empowered to do so.
The Protocol to the UPC Agreement provides for the provisional application of specific articles of the UPC Agreement and of the Statue of the UPC Agreement which are necessary to provide a smooth transition into the operational phase and ensure the proper functioning of the UPC. These articles relate to institutional, organizational and financial provisions of the UPC Agreement.
The Protocol to the UPC Agreement concerns the establishment of the UPC itself and for the establishment of the institutional entities of the UPC which include the Administrative Committee, the Advisory Committee and the Budget Committee.
The Administrative Committee shall be composed of one representative of each Contracting Member State, the European Commission being represented as an observer.
The Advisory Committee shall comprise patent judges and practitioners in patent law and patent litigation with the “highest recognized competence”. Each Contracting Member State shall propose a member of the Advisory Committee, and the members of the Advisory Committee shall be appointed by the Administrative Committee acting by common accord.
The Administrative Committee is responsible namely for setting up each local or regional division upon request of one or more Contracting Member States, for the appointment of the judges and for the adoption of the Rules of Procedure.
The Statue of the UPC Agreement provides for the establishment of a Presidium responsible for the management of the Court and composed of the President of the Court of Appeal, the President of the Court of First Instance, two judges of the Court of Appeal and three judges of the Court of First Instance, as well as the Registrar as a non-voting member.
The Presidium itself shall appoint the Registrar which shall be responsible namely for the organization and activities of the Registry under the authority of the President of the Court of Appeal, including keeping and publishing a list of notifications and withdrawals of opt-outs in accordance with article 83 UPCA.
The Presidium shall also appoint a Deputy-Registrar responsible for the organization and activities of sub-registries under the authorities of the Registrar and the President of the Court of Appeal, including keeping record of all cases before the Court of First Instance.
After finalizing of the necessary recruitments and based on the completion of the tasks of the Preparatory Committee, the Sunrise Period may start, during which applicants and proprietors of EP patent applications or EP patents shall be able to register opt-out requests before full entry into force of the UPC Agreement.
As it is understood, the transition to the operational phase of the UPC will use the extensive work of the Preparation Committee to formally set up the UPC very quickly with a cascade of appointments (Administrative Committee, Advisory Committee, Judges, President of the Court of First Instance, President of the Court of Appeal, Registrar, staff) and the setting up of the legal framework prepared by the Preparatory Committee (Rules of Procedure, Code of conduct, Recoverable Costs…).
If UK and Germany ratify the UPC Agreement by next summer despite the uncertainties created by the Brexit, we may then assist to a breathtaking fall sunrise.