UPC Ratification Update: July 2017













Jane Lambert


In my June UPC Ratification Update 5 June 2017 I wrote:

"There is every chance that the Court will open its doors before the end of this year."

Famous last words! Two days later the UPC Preparatory Committee wrote that "the previously announced target date for the entry into operation of the UPC, envisaged for December 2017, cannot be maintained" (see UPC – Timetable Update – June 2017 7 June 2017 UPC website).

For once it is not out fault. Even though we are negotiating terms for exiting the European Union (see Brexit Briefing June 2017 30 June 2017 NIPC News) we remain on course to ratify the UPC Agreement well before we go. The last legislative hurdle is the ratification of the Protocol on Privileges and Immunities of the Unified Patent Court and that will be done by The Unified Patent Court (Immunities and Privileges) Order 2017 a draft of which has been laid before Parliament together with an explanatory memorandum.

The holdup seems to have been caused by litigation in Germany which has prevented the President from signing into law bills that have been passed by both houses of the federal legislature that ratify the UPC Agreement. In A Message from the Chairman, Alexander Ramsay – June 2017 27 June 2017 on the UPC website, the Chair of the Preparatory Committee wrote:

"In Germany another layer of complexity has been added due to a suit lodged in the German Constitutional Court concerning the German ratification of the UPCA. Unfortunately this has brought a pause to the German ratification of the UPCA and the Protocol on Provisional Application. It is difficult to get a clear understanding of what is the status of the suit and what it is about, since there is not much information publicly available. The complaint has not been notified to the German Government or the Parliament. According to publicly available information an unnamed individual has lodged a complaint against the bill regarding the German ratification of the UPCA and has also submitted a request for preliminary/emergency measures ordering the suspension of the ratification until the Court has decided on the merits of the case. The Court seems to have informed the President of the Republic informally and as seems to be the usual practice in Germany, the President has decided not to proceed with the ratification until the Court has decided on the request for preliminary measures."

So there we have it. An overturned Apfelwagen with Äpfel strewn all over the Straße. Mr Ramsay hopes that "the situation regarding the constitutional complaint in Germany will be resolved rather quickly" but the folk who start this sort of litigation usually have other ideas.  I shall keep you posted.

For other Brexit materials, see my Unified Patent Court and Unitary Patent Court resource page.

If you want to discuss this article or patent litigation generally, call me on +44 (0)20 7494 5252 during office hours or send me a message through my contact form.

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