The Preparatory Committee of the Unified Patent Court (UPC) has reported here on its meeting on 27 October 2021. In the meeting the Committee agreed a draft Declaration concerning the entry into force of the UPC Agreement’s Protocol on Provisional Application (PPA), following the UK’s withdrawal from the UPC system. The Declaration will now be signed – probably in a COREPER meeting.

The draft Declaration is on the authentic interpretation of art 3 PPA. Art 3 provides that the PPA will enter into force the day after 13 Signatory States of the UPCA including Germany, France and the UK have: either ratified or informed the depositary that they have received parliamentary approval to ratify the UPCA, and (in summary) have ratified the PPA or otherwise consented to the provisional application of certain articles of the UPCA. The Committee’s report states that “in line with public international law, this Declaration will confirm the entry into force” of the PPA, once the required 13 states become bound by it, recognising that art 3 PPA “is to be interpreted as mirroring Art. 89 of the UPCA”.  Art 89 UPCA provides for the entry into force of the UPCA, which will be on the 1st day of the 4th month after the deposit of the 13th instrument of ratification or accession, including 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. Those three Member States are Germany, France and Italy. This means that, now the UK is not participating, for the PPA to enter into force Italy, instead of the UK, must meet the requirements in art 3, which it does.

In the meeting the Chairman emphasised that only one more Member State is now needed to meet the requirements of the entry into force of the PPA. The report states: “From the discussions it can be concluded that it is likely that the requirements will be met by the end of the year.” The Provisional Application Phase is therefore expected to start late 2021 or early 2022.

Other matters covered in the meeting included:

• Case Management System – information on its finalisation, including some minor adjustment to the Rules of Procedure and Rules governing the Registry:
• IT – an update of the Court’s IT framework, with an illustration of the expected complementary roles of the central and the local IT teams to be set up in each division, and a reminder of the specifications for facilities and IT equipment to be provided by Member States hosting divisions;
• HR – the framework for both the hiring of judges and the local selection of administrative support staff; and
• Budget – information about the current draft budget for the PAP, including a preliminary evaluation of the Member States’ contributions (to be called for shortly after the start of the PAP).