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Progressing towards the start of the UPC (without the UK)

At a meeting on 27 October 2021 the Unified Patent Court Preparatory Committee met in Luxembourg and reviewed progress and preparations for the start of the UPC. Of note, the requirements for the Protocol on the Provisional application of the UPC Agreement (PAP-Protocol) to come into effect have taken a step closer with Slovenia making the number of member states to have ratified the PAP-Protocol 12 and the number of states to have ratified the UPC to 16.

For the PAP-Protocol to come into effect 13 member states need to have ratified the PAP-Protocol thus only one more member state needs to ratify for this to come into effect. However Article 3 of the PAP-Protocol, which mirrors Article 89 of the UPC Agreement, sets the conditions for the PAP-Protocol to start, which require not only that 13 member states ratify the PAP-Protocol but that amongst these member states are Germany, France and UK. The meeting therefore addressed the withdrawal of the UK from the UPC with a proposal that this be interpreted under International law, with the effect that withdrawal of the UK from the UPC agreement would not prevent the agreement coming into effect once 13 member states ratify the PAP-Protocol.

It was also noted that the protocol on privileges and immunities which is required for the court officials to act came into effect on 27 October 2021.

The PAP-Protocol is a short preparatory agreement of secondary legislation governing preparations for the start of the UPC by provisional application of some the Articles of the UPC Agreement required for those preparations.

Currently it is expected that the PAP-Protocol will not start until the late 2021 or early 2022.

Report of the Preparatory Committee meeting held on 27 October 2021

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