Lucky 13? Austrian Upper House Brings the Unitary Patent Closer

The EU "unitary patent" took a step closer to being established on 2 December when the upper House of the Austrian parliament (the Federal Council) approved the Protocol for Provisional Application (PPA) of the Unified Patent Court Agreement (UPCA). The Unitary Patent (UP) is intended to be a single patent right having effect in the territory of participating EU members, overseen by the Unified Patent Court (UPC). Austria is now in a position to become the 13th state to deposit its instrument of ratification of the PPA, perhaps in early 2022, if not before the end of 2021. As reported here, the Preparatory Committee of the UPC reports that Austria depositing its instrument of ratification of the PPA will allow the phase of provisional application of the UPC agreement officially to start, meaning that the UPC can be set up as an institution before the UPC system itself is fully operational.

The Chairman of the Preparatory Committee has stated that eight months are required to complete the tasks set for the phase of provisional application. Once the tasks set for the phase of provisional application are complete, it is intended that Germany will deposit the final ratification required for the UPC Agreement to come into force. This will start the four-month period leading to the day the UPC is able to take its first cases and applicants will be able to select a unitary patent upon grant of a European patent by the EPO, thereby avoiding having separately to validate the European patent in the member states participating in the UP.