4. Entry into Force and Transitional Provisions

4.1 Entry into Force

The AUPC needs to be ratified by at least 13 signatory states, among them Germany, France and the United Kingdom. It will enter into force four months after the 13th ratification instrument has been deposited. However, following the vote to leave the European Union the United Kingdom cannot participate in the Unitary Patent Court in the long term. Even though the United Kingdom currently is still a EU member state and received parliamentary approval, it will therefore likely not ratify the AUPC. As a consequence, the AUPC will not enter into force before the United Kingdom exits in 2018 or 2019.

Currently it is unclear as to whether and when the AUPC will enter into force in its present form. One of the options the remaining signatory states have is to agree on an amendment of the AUPC which may include changes to the seat of the central division, court fees and the language regime. Such amendment would have to be signed and ratified by the participating EU member states.

The Preparatory Committee has drafted a Protocol on the Provisional application of parts of the AUPC, which is open for signature by the signatory states. As soon as the AUPC has received the necessary ratifications, the Protocol would allow the Unified Patent Court to appoint a president and to hire personnel, move into its premises, put the IT system in place, receive notifications and fees and make all preparations necessary for its functioning from the first day the AUPC enters into force.

Currently ten signatory states have ratified: Austria, Belgium, Denmark, France, Malta, Sweden, Luxembourg, Portugal, Finland and Bulgaria. 13 further member states have signed, but not yet ratified. In several participating member states legislation is under way (i. a. Germany, Italy and the Netherlands), The required minimum ratification by 13 signatory states will presumably be reached in autumn 2016.

Spain and Poland have not signed the AUPC. Croatia, an EU member states since June 2013, may later accede to the AUPC. EPC member states which are no EU member states do not have this possibility.

At the beginning, Spain and Italy had not concurred in the enhanced cooperation in the area of unitary patent protection, but rather filed actions against the Counsel´s decision authorising this procedure with the European Court of Justice. Both law suits have been rejected on 16 April 2013. Spain has filed two further law suits against the Unitary Patent Regulation and the Translation Regulation on 22 March 2013. These lawsuits have been dismissed by the Court of Justice on 7 May 2015 as well. In the meantime, Italy has not only signed the AUPC, but also joined the enhanced cooperation.

4.2 Transitional Provisions

For at least a transitional period, Unitary Patents will not have effect in all member states of the European Union:

Art. 83 par. 1 AUPC allows for a transitional period of seven years from the coming into force of the Agreement during which patent infringement actions and actions for revocation with regard to "classical" European patents may be filed either with the Unified Patent Court or with the national patent courts.

According to art. 18 par. 2 Unitary Patent Regulation, a Unitary Patent has only effect in such member state in which at the time of the grant of the patent the AUPC was in force. An extension of the territorial scope of already granted Unitary Patents to later ratifying or joining states is not provided for in the Agreement. Since not all participating member states will ratify the AUPC at the same time there will be Unitary Patents with different territorial scope for at least a transitional period.

The applicant or owner of a European patent can exclude the competence of the Unified Patent Court by giving a declaration in accordance with art. 83 par. 3 AUPC (opt out). The declaration must be given at least within one month prior to the end of the transitional period. This is to safeguard proprietors of European patents from being forced into the Unified Patent Court system against their will. The applicant or owner of a European patent may withdraw this exclusion declaration at any time unless an action has already been brought before a national patent court in respect of this patent (art. 83 par. 4 AUPC).

The transitional period may be extended for seven further years (art. 83 par. 5 AUPC) which will give the Unified Patent Court system an opportunity to establish confidence in its quality.