UPC launch date, Italy, Protocol to the UPC Agreement
There have been three important announcements recently regarding the unitary patent (UP) and Unified Patent Court (UPC).
Italy joins the unitary patent
On 30 September, Italy was formally joined to the enhanced co-operation procedure through which the UP will be created. This brings to 26 the number of European Union member states participating, although in practice it is really only 25 since, in addition to Spain (which remains opposed) and Croatia (which was too recent an EU member to participate - yet), Poland's refusal to sign the UPC Agreement means that it is also outside the UP area. However, with Italy being one of the largest economies in the EU, its addition to the UP area will improve the economic attractiveness of the UP for some entities at least.
Protocol to the Unified Patent Court Agreement
As most people will know, the UPC Agreement provides that the UPC system comes into being three months after the 13th ratification of that Agreement (so long as the UK, France and Germany are among those ratifications). However, the fact that the UPC would not be formally or legally in existence before that time has been causing a few practical headaches for the UPC Preparatory Committee. One of the most important is the administration of the opt out procedure for conventional European patents, since a significant body of users of the European patent system wish to ensure at least some of their conventional European patents are opted out before the commencement of the system, to avoid being involved in UPC revocation proceedings right at the outset. This required a sunrise arrangement whereby pre-commencement opt outs could be applied for and made effective as from day one. One proposal was for the European Patent Office (EPO) to administer the pre-commencement opt outs but that has not proven to be possible.
On 01 October 2015, the Competitiveness Council of the European Union announced the signing of a Protocol to the UPC Agreement. The Protocol, which itself still requires a few further signatures, will allow the UPC to come into partial effect in the interim between the 13th ratification of the UPC Agreement (or indication that the 13th ratification has been approved by the relevant member state's parliament), and the expiry of the three month period provided for in the UPC Agreement. This will in turn enable the UPC Registry to come into existence and thus administer opt-outs in the pre-commencement period. Users should therefore keep an eye out for details as to how and when they can apply for opt outs pre-commencement. We will be doing the same and will publish the details when we know them.
UPC start in 2017
At the same time as the signing of the Protocol was made public, the UPC Preparatory Committee announced its own commitment to complete its preparatory work on the UPC by the end of June 2016, enabling the UPC to commence at the beginning of 2017.
While it is worth noting that this is not a formal announcement of a commencement date (there are still political steps to be taken in terms of ratification before that can happen, and these may or may not be quite complete in time for such a start), this commitment and the other recent developments do bring the commencement of the UPC much closer to reality, and some time early in 2017 looks very likely now.