The requisite number of Member States have now ratified the Unified Patent Court Agreement and the Protocol on the Provisional Application of the UPC Agreement (Protocol).

Germany, following significant constitutional challenges, ratified the UPC Agreement and the Protocol in late September 2021. Slovenia subsequently ratified both instruments in October 2021.  Austria followed suit on 2 December 2021 as the 13th and final Member State required to launch the United Patent Court (UPC).

Once Austria deposits its instruments of ratification, the provisional application phase of the UPC and the practical preparations for the operation of the UPC will begin, most likely in early 2022. 

The provisional application phase will involve adopting the secondary legislation of the UPC, including the establishment of court procedures, budgeting, recruitment of judges and staff, and the finalising of file management systems and IT infrastructure.  While there is no express deadline set for completing the provisional application phase, it is expected to take a minimum of eight months. 

Germany acts as ‘gatekeeper’ for the UPC; once the provisional application phase is completed, Germany will deposit its UPC Agreement ratification (withheld until the provisional application phase is completed). Germany’s deposition will trigger a final three-month period before the UPC can become fully operational and officially take its first cases. 

Considering these final steps, the UPC may be up and running by early 2023. 

Ireland and the UPC 

The UPC is intended to hold full competence in certain patent matters from the outset, and over time its exclusivity of jurisdiction in patent matters will increase. The UPC’s exclusivity of jurisdiction in patent matters would take away from the full and original jurisdiction of the Irish courts in such matters so, for Ireland to ratify the UPC Agreement and the Protocol, a successful constitutional referendum is required to allow for the transfer of jurisdictional powers from the Irish courts to the new international court.

Although Ireland has signalled its intention to participate in the UPC and is involved at a European level on matters pertaining to the UPC, to date there have been no positive steps taken by the Government towards the holding of any such referendum.

Please contact Laura Scott, Charleen O’Keeffe, Colette Brady or your usual William Fry contact if you have any questions about the Unified Patent Court or would like to know more about our patent litigation services,

Contributed by Florence Meagher