The European Unitary Patent System looks to be back on track again

It is with a certain trepidation that I write this newsletter because I have been wrong before with predictions as to when Europe’s Unitary Patent system of central validation, renewal and litigation was going to be up and running, but it does look as though the system is finally back on track after being held up for several years by court actions in Germany.

The most recent obstacle was that the German Constitutional Court (Bundesverfassungsgericht) had before it two complaints alleging that the proposed system was in violation of fundamental rights. On Friday 9 July 2021, the German Court threw out these two cases as inadmissible.

Barring any unexpected problems, Germany is now free to deposit its instrument of ratification of the UPC Agreement which is necessary for the system to come into effect. The German Parliament has already passed the legislation to enable this to happen and so ratification could happen fairly quickly. There are also some loose ends to tie up regarding the Protocol on Provisional Application which are also expected to process quickly. Once that has been done, final preparation for the Unified Court’s opening can begin including dusting off the IT system and recruiting judges. Those preparations are expected to take at least six months.

I am reluctant to make a prediction, because I have been wrong before, but it looks like the UPC system may be up and running by the start of 2022.

We are, of course, closely monitoring developments and will let our clients know when timings have become more certain as well as offering our clients further information and advice as to how to navigate the new system.

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