Germany has ratified the Agreement on a Unified Patent Court
The anticipated German Ratification of the UPC Agreement has finally taken place after the German government deposited its instrument of ratification of the Agreement on a Unified Patent Court with the Council of the European Union, thus triggering the start of the sunrise period on 1 March 2023.
This brings the number of states to have ratified the agreement to 17 including Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Slovenia, Sweden and now also Germany.
Other EU countries are expected to follow in the future, including Ireland whose Government has reaffirmed its commitment to participate in the European Unitary Patent system and Unified Patent Court (UPC) and to hold a referendum to enable Ireland to do so.
The recent ratification of the UPC Agreement by Germany will enable the UPC to formally enter into force on 1 June 2023, in accordance with Article 89 of the UPC Agreement.
Among those to publicly welcome the news of Germany’s ratification is the European Patent Office (EPO). EPO President António Campinos says “The deposit by Germany opens the door for a new era of IP protection in Europe. Under the Unitary Patent system, European businesses will be able to benefit from broader and more effective patent protection at lower costs, which is particularly important for smaller entities. The start of the long-expected system is the result of close co-operation and constructive work of all partners and stakeholders of the European patent system. It will be a boon for the European economy as it establishes a uniform technology market facilitating transactions across a big economic region.”
With the court expected to begin hearing cases later in the year, it remains to be seen how effective the UPC will be in streamlining the patent process and protecting businesses’ intellectual property. Nonetheless, Germany’s ratification marks a significant step towards a more harmonized and streamlined approach to the EU’s patent system and patent law.
UPC Timeline Delayed
The date of entry into force of the UPC Agreement was initially marked as 1 April 2023, however, the UPC announced an adjustment of this timeline to allow users more time to prepare themselves for the strong authentication required to access the Case Management System (CMS) and to sign documents.
The sunrise period will now begin on 1 March 2023. From this date, proprietors may ‘opt out’ their European patents and published European patent applications from the jurisdiction of the UPC. Applications to opt-out which are accepted by the Registry during the sunrise period shall be treated as entered on the register on the date of entry into force of the Agreement, i.e., on 1 June 2023.
As a recap, the following requirements must be met for a valid opt-out:
- all actual proprietors have agreed to the opt-out
- no action has been brought before the UPC in respect of the application, patent or SPC for which opt-out has been requested
- the opt-out can only be made in respect of all states for which the European patent has been granted or which have been designated in the application
Despite the delay to the start of the sunrise period and the entry into force of the UPC Agreement, the starting date for the EPO transitional measures remained, enabling applicants to file early requests for unitary effect and to request a delay in issuing the decision to grant a European patent as from 1 January 2023.
A Unitary Patent offers several benefits, including:
- major cost savings as it eliminates the need for separate national validations, translations and maintenance fees in each member state
- uniform protection across all participating member states, making it easier for patent owners to enforce their rights in the event of an infringement
Accordingly, it’s no surprise that many European patent applicants have already begun availing of the EPO transitional measures, as reported last week.
Second Sunrise Practice Period
We have successfully carried out a test opt-out since the second sunrise practice period started on 13 February and we will be monitoring the test site for any further developments or changes prior to the beginning of the sunrise period.
Figure 1 shows an opt-out receipt produced by the CMS test environment
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Hannah Quigley – European Patent Attorney