UPC Preparatory Committee Suggests a Declaration can clear the Path to the UPC

Commentators have been concerned that implementation of the Unitary Patent (UP), which is intended to be a single patent right having effect in the territory of participating EU members, overseen by the Unified Patent Court (UPC), could be delayed due to the UK's withdrawal. This is because of the express mention of the UK and London in the Unified Patent Court Agreement (UPCA), the Protocol for Provisional Application (PPA) and the Protocol on Privileges and Immunities (PPI), all of which need to come into force in order for the project to go ahead. The UK has indicated that it will not be participating in the UPC and UP, thereby potentially making it impossible for the UPC and UP to go ahead without rewriting and re-ratification of the UPCA, PPA and PPI, which would likely take years.

The report of a meeting held on 27 October by the Preparatory Committee of the UPC has indicated that the delegations supported a proposal from the Chairman of the Preparatory Committee for dealing with this issue. The Chairman proposed that a Declaration be signed by all participating members which states that the authentic interpretation of Article 3 of the PPA (which requires the UK to have ratified the PPA in order for the PPA to come into force) is that the article should be read to mirror Article 89 of the UPCA. Article 89 of the UPCA refers to the three member states in which the highest number of European Patents had effect in the year in which signature of the Agreement takes place, which was 2009. The logic is that as the UK is no longer a member state, the three member states of Article 89 are Germany, France and Italy, thereby allowing the UPC and UP to go ahead without rewriting the agreements and ratification.

The report does not elaborate on how the mention of London hosting a central division in the UPCA will be dealt with. The report also mentions that the PPI has come into force, yet does not acknowledge Article 18(1) PPI which requires the UK to have deposited its instrument of ratification of the PPI for the PPI to come into force. It would seem that if the political will to continue with the project exists that a way to deal with these issues to the satisfaction of the participating members can be found.

These developments show that the participating member states are determined to forge ahead with the UPC and UP and they predict that the PPA will come into force later this year or early 2022. The Chairman of the Preparatory Committee has stated that eight months are required to complete the tasks set for the PPA, thereby potentially enabling the UPC to open its doorssometime in 2022. Once up and running, the system will allow applicants to select a unitary patent upon grant of a European patent by the EPO, thereby avoiding having to separately validate the European patent in the member states participating in the UP.