Latest developments

23. November 2017
Update: Constitutional complaint against UPC legislation

After the ratification process of the Unified Patent Court (UPC) Agreement was put on hold in March this year due to a complaint before the German Federal Constitutional Court (see (see article below from 17th July 2017), the German legal news publication JUVE recently revealed the drafter of the complaint, namely the attorney Dr. Ingve Stjerna from Düsseldorf (see JUVE article from 6th of November 2017). Dr. Stjerna told JUVE that he considers the UPC Agreement to be unconstitutional because it would transfer more sovereign rights to the EU than is compatible with the German constitution, in particular the “right to democracy” found in Article 38 sub. 1 of the German Constitution. Moreover, he claims that a majority of two-thirds was required to ratify the UPC Agreement, which passed the German parliament with a mere simple majority.  Finally, he alleges that the UPC Agreement does not conform with EU law.

As of yet it is unclear whether the German Federal Constitutional Court will admit the complaint. However, the fact that the Court asked the German president not to ratify the UPC legislation yet and the Federal Government as well as the German Bar Association to comment on the complaint indicates that the Court does not consider the complaint apparently inadmissible. According to JUVE, the allocated time limit for these comments is short, which renders a decision by the end of the year possible.

17 July 2017
Constitutional complaint against UPC-legislation

The Federal Constitutional Court of Germany (Bundesverfassungsgericht, BVerfG) has requested the Office of the President of the Republic to temporarily refrain from signing and submitting for publication the draft legislation required for Germany to ratify the Agreement on an Unified Patent Court (UPC). The reason for this is a suit in front of the BVerfG in which a complaint against the bill regarding the German ratification of the UPC-Agreement was lodged. The complaint includes a request for preliminary measures ordering the suspension of the ratification until the Court has decided on the merits of the case. Unfortunately this has brought a pause to the German ratification of the UPC-Agreement and the Protocol on Provisional Application. The reasons for the claim have not been published yet but however the BVerfG would be expected only to have issued the request on the basis that the challenge could not be found to be totally without merit from the outset.
Even if the BVerfG would reject the complaint quickly, the start of the UPC could be delayed anyhow because of the outstanding ratification process in the UK and the re-elections of the House of Commons in June 2017.

28 November 2016
"Green light" to unified patent court agreement by the British government. As the Minister of State for Intellectual Property, Baroness Neville Rolfe, sais, the UK government is proceeding with preparations to ratify the Unified Patent Court Agreement. For as long as the UK is a member of the EU, it will "continue to play a full and active role", the Minister of State assures. However, she stresses that "the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU". The press release can be found here https://www.gov.uk/government/news/uk-signals-green-light-to-unified-patent-court-agreement.

14 September 2016
The Netherlands ratify the UPC Agreement, thus becoming its 11th member state.

23 June 2016
The British vote for leaving the EU ("Brexit"). The outcome of the referendum threatens to delay the introduction of the European patent with unitary effect ("Unitary Patent") that was scheduled for 2017. One of the mandatory requirements for the Agreement to enter into force is its ratification and deposition by "the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place", Art. 89 Sec. 1, Var. 2 UPC-Agreement. Those are Germany, France - and the UK. Additionally, Art. 7 Sec. 2 UPC-Agreement locates one section of the Court of First Instance's central division in London. If the UK does indeed leave the EU, the Court of First Instance would accordingly have one of its sections in a country that is not subject to the Court's jurisdiction. Given the circumstances, it is unlikely that the UK will ratify the UPC-Agreement. Possibly, the agreement will need to be negotiated anew. 

7 June 2016
Bulgaria is the 10th member state to ratify the UPC Agreement.

27 May 2016
During a meeting of the Preparatory meeting in Hamburg salaries, pensions, and healthcare packages of the judicial staff was discussed as well as the financial management of the court during the provisional application period. (https://www.unified-patent-court.org/news/16th-preparatory-committee-may-26-2016-report-meeting). UPC judicial recruitment has started.

15 April 2016
During its 15th meeting (https://www.unified-patent-court.org/news/report-15th-preparatory-committee-meeting) the Preparatory Committee agreed to commence the UPC judicial recruitment process in May. A draft Code of Conduct for practitioner is expected to be agreed at the next meeting.

2 March 2016 
UK passes UPC legislation, will not ratify before Brexit referendum.

26 February 2016
The final draft of the rules on Court fees and recoverable costs as well as the guidelines for the determination of Court fees and recoverable costs of the successful party have been published. The rules do not provide for an opt-out fee any longer. 

24/25 February 2016
During its 14th meeting the Preparatory Committee agreement was reached on a number of matters, i.a. the Rules on Court fees and recoverable costs, Rules governing the Registry of the UPC, Rules of Operation of the Arbitration and Mediation Centre,  a Protocol on Privileges and Immunities and the level of judicial salaries. (https://www.unified-patent-court.org/news/report-14th-preparatory-committee-meeting)  

21 January 2016
Finland is the 9th member state to ratify the UPCA.

15 December 2015
The European Patent Office has completed the secondary legal framework for the introduction of the Unitary Patent, including implementing and financial rules as well as the distribution of renewal fees. (more)

18 November 2015

The Select Committee at the European Patent Office reached agreement on the distribution of income generated by the payment renewal fees by patent owners for maintaining their Unitary Patent. 50% of each renewal fee remain with the EPO, while the other 50% are to be distributed among the member states.

22 October 2015

The signatory states adopted the Rules of Procedure of the Unified Patent Court. This adoption took place at the occasion of the 12th meeting of the Preparatory Committee, during which also the current project plan was presented. This plan provides the work of the Committee being finished by mid-2016 and the court to be operational at the start of 2017. (more)

1 October 2015

The Protocol to the Agreement on the Unified Patent Court (AUPC) for a preliminary application is ready for signature and ratification by the member states. The Protocol provides some parts of the AUPC to be applied before the entry into force including the practical set up of the court, the recruitment of judges and the drawing up of a budget. In addition, the protocol will allow an early registration of opt out declarations and the adoption of the rules of procedure. (more)

30 September 2015

Italy is the 26th member state of the enhanced cooperation in the field of the creating of uniform patent protection.

6 August 2015

Portugal ratified the AUPC.

20 July 2015

The Institute of Professional Representatives before the European Patent Office published an overview of the AUPC ratification process in the member states, the prospective establishment of local and regional divisions as well as its languages of proceedings.

10 July 2015

During the 10th meeting of the Preparatory Committee the 18th draft of the Rules of Procedure was presented. While not substantially dissimilar from the 17th draft Rules, the latest draft provides more details on opt-out declarations, actions before the central division, replies, securities and applications for legal aid. The Preparatory Committee has the opportunity to clarify one or two items, to make final adjustments. The Preparatory Committee is expected to adopt the Rules during its meeting on 13 October 2015.

7 July 2015

Italy has sent a notification to the EU of its intention to participate in the enhanced cooperation in the area of the creation of unitary patent protection. In case the Commission confirms the participation and Italy ratifies the Agreement on a Unified Patent Court, unitary patents will become valid in Italy as well. (more)

24 June 2015

The select committee of the European Patent Office (EPO) set the level of renewal fees applicable to the Unitary Patent. The EPO reports that the committee adopted the proposal for a "true TOP4" level with the required 3/4 majority. Accordingly renewal fees will correspond to the total sum of the renewal fees currently paid for the four most frequently validated EU member states Germany, France, UK and the Netherlands. The EPO will be ready to grant the first Unitary Patents in 2016.

23 June 2015

The UK Intellectual Property Office clarifies that it is the government´s intention to press ahead with the implementation of the unitary patent regulations and the Unified Patent Court Agreement (UPCA) and to complete the ratification procedures by spring 2016, the blog IPKat reports. A ratification of the UPCA would thus not be linked with a favorable outcome of the EU referendum.

22 May 2015

Luxembuorg ratifies the UPC Agreement.

13 May 2015

The Italian Ministry of Economic Development announced that it is a priority for Italiy to join the Unitary Patent. The press release noticed that after the May 5th CJEU's decision that rejected Spain's claims, Italy has confirmation that the Unitary Patent Package's legal framework is not open for discussion anymore. Italy had signed the Agreement on a Unified Patent Court, but not become a party to the enhanced cooperation in the creation of a Unitary Patent.

11 May 2015

The Preparatory Committee published a proposal on the Rules on court fees of the Unified Patent Court. The opt-out fee will be € 80. The same amount is due for opting back in. For an infringement action a fixed court fee shall be paid in the amount of € 11,000 as well as an additional value-based fee for those actions, which exceed a value of € 500,000. A revocation action will not exceed € 20,000. Suggested exemptions and reductions for smaller parties are up for discussion. (more)

8 May 2015

The European Patent Office (EPO) launched adjusted proposals for the level of renewal fees of the future Unitary Patent. These proposals aim at presenting "true" TOP 4 and TOP 5 levels, i.e. renewal fees that over the entire patent term will not exceed the sum of the renewal fees in the four or five most important member states (Germany, France, Great Britain, the Netherlands and Sweden). Regarding the fee reduction of 25% for SMEs in the true top 5 model, the EPO proposes that the reductions would be available to all SMEs, natural persons, non-profit organizations, universities and public research organizations, whether domiciled in or outside Europe.

5 May 2015

The Court dismissed both of Spain's actions against the Unitary Patent Regulation and the Translation Regulation as unfounded. (more)

The Netherlands have started the ratification process of the Agreement on a Unified Patent Court. In addition to ratifying the agreement a proposal for the amendment of the Dutch Patent Act is also presented, which will bring the Patent Act in line with the substantive provisions of the agreement. Regarding these amendments the Dutch government launched an internet consultation. (more)

18 March 2015

Luxembourg passed a bill approving the Agreement on a Unified Patent Court. This state will not establish its own local division of the Unified Patent Court. (more)

11 March 2015

The European Patent Office released a proposal for Unitary Patent renewal fee structure. According to this proposal the renewal fee have a three-tier structure: For years 3-5 from filing the level equals the level of the EPO´s internal renewal fees. Years 6-9 have a transitional level between the IRF level and the year 10 level. From year 10 onwards the level is equivalent to the total sum of the national renewal fees payable in four (TOP 4) or five (TOP 5) states in which European patents are most frequently validated.

27 February 2015

During the 8th meeting of the Prepatory Meeting especially the court fee structure of the Unified Patent Court was discussed. It is anticipated that consultations will launch in the spring of this year. (more)

9 December 2014

Malta ratified the Agreement on the Unified Patent Court. (more)

26 November 2014

The Preparatory Committee published the 17th draft Rules of Procedures and held an oral hearing. Amendments from the last version primarily relate to the registration of the opt-out notification (Rule 5) and the regime of the language of proceedings for the court (Rule 14).

16 September 2014

The Preparatory committee presents an updated roadmap of the preparatory phase of the Unified Patent Court including target date and key milestones. (more)

25 August 2014

The European Patent Office adopted in principle the Draft Rules relating to Unitary Patent Protection. (more)

8 July 2014

Over 1300 candidates have applied to become judges in the Unified Patent Court. The Preparatory Committee approved during its 6th meeting a list of suitable candidate judges. Of the candidates, 170 were identified as legally qualified, with 340 additional technically qualified judges. (more)

20 June 2014

Denmark ratified the Agreement on the Unified Patent Court. (more)