Italy signs UPC Provisional Application Protocol and other countries urged to do so to enable UPC to open in 2017


In yesterday’s EU Competitiveness Council meeting the implementation of the unitary patent and Unified Patent Court (UPC) system was discussed, and there was a call for those countries which have already ratified the UPC Agreement to also consent as soon as possible to the UPC Agreement’s Protocol on Provisional Application (if they have not already done so).  Italy, being one such country (having deposited its instrument of ratification of the UPC Agreement last week, as reported here) consented to the Protocol yesterday, it being signed by the Italian Undersecretary for EU policy, Sandro Gozi, in the margins of the meeting.

In the press conference after the Competitiveness Council meeting it was reported that all member states who are in the process of ratifying the UPC Agreement had confirmed in the meeting that they are in the final stage of doing so (‘together with Germany and UK’).  Regarding the Provisional Application Protocol, the meeting’s report states ‘Some delegations called on member states to intensify their efforts so as to bring this major reform into operation as quickly as possible. In particular, the Belgian and Swedish delegations urged the participant member states to confirm their consent on the protocol to the UPC agreement on its provisional application in order for the unitary patent package to be able to come into operation before the end of 2017.’  The Belgian and Swedish delegations’ note urging such action explains that, as well as enabling the UPC to open before the end of the year, it is in a member state’s interest to do so as only those participating in the provisional application will have voting rights in the UPC Committees taking decisions on issues such as recruitment of judges and administrative staff (e.g. for the Training Centre and the Patent Mediation and Arbitration Centre).  Another call to action was made by BusinessEurope, in a letter sent to the Maltese EU presi­dency ahead the meeting: ‘BusinessEurope calls on EU Member States party to the agreement to complete swiftly all actions necessary for the entry into operation of the Unified Patent Court and the Unitary Patent as planned before the end of the year. This requires the entry into provisional application in May 2017 at the latest. Furthermore, it remains key to ensure the broadest possible geographical coverage of the system.’

The Provisional Application Protocol allows various parts of the UPC Agreement to come into force early and the ‘Provisional Application Phase’ to start, during which final preparations for the start of the UPC system (such as recruitment of judges) can be completed. For the Protocol to come into force, 13 states (including France, Germany and the UK) must have: either ratified or informed the ‘depositary’ that they have parliamentary approval to ratify the UPC Agreement; and have consented to be bound by the Protocol (by, for example, signature or a declaration). However, to date, only seven countries meet this requirement: progress on consent to Protocol (Italy’s signature not yet recorded),  progress on ratification of the UPC Agreement.  Those seven countries are France, Denmark, Finland, Italy, Luxembourg, the Netherlands, and Sweden. Germany and the UK have each consented to the Protocol. Therefore, in addition to Germany and the UK’s ratification of the UPC Agreement, at least four more countries must take some action, either ratifying the Agreement (or notifying parliamentary approval) or consenting to the Protocol, or both.  For example: Slovenia and Hungary have signed the Protocol, Slovenia is ready to ratify the Agreement and Hungary is making preparations to do so; and Belgium and Malta have ratified the Agreement and were reported (in November 2016) to have announced that they would declare themselves bound by the Protocol as soon as the UPC Preparatory Committee knew a starting date – as the Committee announced in January that the UPC is expected to open in December 2017 it could be expected that at least Belgium (in view of the above note) will shortly do so.

Richard Pinckney


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