Unified Patent Court Doors expected to open in early 2023!

Among other things, the Administrative Committee has adopted the UPC’s Rules of Procedure and Table of Fees, both of which will enter into force on 01 September 2022, in good time for application during the sunrise period, which could start in the fourth quarter of 2022.

In regard to the Court of First Instance, the Administrative Committee has confirmed Local Divisions in Vienna, Austria; Brussels, Belgium; Copenhagen, Denmark; Helsinki, Finland; Paris, France; Düsseldorf, Hamburg, Mannheim and Munich, Germany; Milan, Italy; The Hague, Netherlands; Ljubljana, Slovenia; and Lisbon, Portugal. A regional division, the Nordic-Baltic division, is to be mainly located in Stockholm, Sweden.

Assisted by the Advisory Committee, the Administrative Committee prepares the appointment of legally qualified judges and technically qualified judges of the Court based on a recommended list of most suitable candidates. According to Art. 15(1) UPC Agreement, “[j]udges shall ensure the highest standards of competence and shall have proven experience in the field of patent litigation”. Taking the court’s decisions according to Art. 24 UPC Agreement based on European Union law, the UPC Agreement, the European Patent Convention, and other international and national laws relevant to the Contracting member states of the UPC, these judges will be key to the success of the Unified Patent Court, being a “common court” for several member states of the European Union.

Following the meeting of the Administrative Committee, the UPC can now reasonably be expected to open its doors in early 2023.

At least three calendar months before entry into force of the UPC Agreement the “sunrise period” will start. During the sunrise period, “classic” European patent applications, European patents and related supplementary protection certificates (SPCs) ‑ but not unitary patents ‑ may be, by applicants, proprietors and holders, respectively, safely opted-out from the exclusive competence of the new UPC according to Art. 83(3) of the UPC Agreement before an action against any of them can be brought before the UPC.

Thus, bearing in mind that the UPC Agreement can be expected to enter into force in “early 2023”, any applicants or proprietors being sceptical of the new court are advised to identify the European patent applications, European patents and SPCs that they wish to opt-out, such that any application to opt-out may be timely lodged with the registry of the UPC during the sunrise period. The sunrise period is cautiously expected to start between September and December 2022.

Applicants, proprietors and holders considering opting out European patent applications, European patents and SPCs, respectively, are advised to contact their representatives as soon as possible.