The German legislation enabling Germany to ratify the Unified Patent Court (UPC) Agreement and its Protocol on Provisional Application (PPA) was published yesterday in the Bundesgesetzblatt Teil II (Federal Law Gazette) Part II (No.18, 12 August 2021) and came into force today. This follows the decision of the BVerfG (Federal Constitutional Court), reported here, to dismiss the interim injunction applications in two complaints which were preventing the legislation coming into force.
The consent of Germany and two other countries to the UPC’s provisional application phase is required for this phase to come into force (consent being by ratifying the PPA or by other means set out in the PPA). It is understood that at least two countries have indicated that they are in a position to consent relatively quickly. During the provisional application phase, final preparation, including recruitment of judges, can take place. It is expected that this phase is likely to last at least 6-8 months, with the UPC Preparatory Committee having stated that it will publish in due course a timeline and plan for the start of the phase and its execution.
Although the law enables Germany to ratify the UPC Agreement, it will not actually deposit the instrument of ratification with the General Secretariat of the Council of the EU until some point during the provisional application phase (when it is clear when the Court will be ready to open), as the UPC Agreement will enter into force on the first day of the fourth month after the deposit.