On 1 October 2015, representatives of member states party to the agreement on a Unified Patent Court (UPC) signed a protocol allowing for the provisional application of certain aspects of the court agreement. The protocol enables the early application of certain provisions necessary for the operation of the UPC, such as the setting up of IT infrastructure and the recruitment of judges.
Of particular interest to clients, the protocol may also allow for the so-called sunrise provision, under which the filing and registration of opt-outs may be made prior to the UPC agreement coming into effect. Once registered, opt-outs will prevent the UPC asserting jurisdiction over existing, classical (i.e. non-unitary) European patents and classical European patents granted by the European Patent Office (EPO) once the UPC agreement comes into effect. The commencement date of the sunrise provision has not yet been set by the EPO.
In announcing the protocol to the UPC agreement, it was stated that the UPC Preparatory Committee aims to complete its work by mid 2016, in principle enabling the court to open in early 2017. However, the court will not become operational until the agreement has been ratified by at least thirteen member states including the three biggest validation states, namely the United Kingdom (UK), France and Germany. Austria, France, Sweden, Belgium, Denmark, Malta, Luxembourg and Portugal have already ratified the agreement, but the UK and Germany have not yet.