Opinion: UPC up and running in mid-2022 – really?
Managing IP is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Opinion: UPC up and running in mid-2022 – really?

Europe viewed from space at night with city lights in European Union member states, global EU business and finance, satellite communication technology, 3D render of planet Earth, world map from NASA

In its outlook for the UPC, the preparatory committee casually breezes over some of the remaining thorny issues, including the London central division seat

Supporters of the Unified Patent Court would have watched with pleasure last week as reports emerged that Germany had formally ratified the UPC Agreement, bringing another chapter in this epic thriller to a close.

It came after two rounds of constitutional complaints threatened to put the brakes on the project, which was signed in Brussels eight and a half long years ago. Now, the stage seems set for a smooth transition to making the project a reality, at least according to the UPC preparatory committee.

In its latest update yesterday, August 18, the committee said the UPC is likely to come into force in mid-2022. Yes, that’s right: just one year from now.

Related stories:

Germany and two other UPC states must first ratify the Protocol on the Provisional Application of the UPC Agreement in order to kickstart the provisional application period (PAP) – which is the final phase of the court’s set-up.

It seems uncontroversial to suggest, as the committee has done, that this can take place imminently in Germany. After all, the powers that be have just ratified the UPC and removed a rather large block on its progress.

However, we move into slightly murkier territory when trying to predict which countries will follow suit and fill the two remaining spots. Some sources have suggested Austria and Malta are most likely, although there is no concrete evidence yet. Nevertheless, the preparatory committee suggests boldly that “these additional ratifications are expected to take place in a timely manner during autumn of this year”.

With the PAP then beginning, the governing bodies of the court would be assembled and all secondary legislation adopted, the committee says, adding that the budget and the IT systems would be finalised and the judges recruited. All of this would take just eight months, apparently.

London calling

There are at least two problems with this timeline, the first of which is a major omission: where will the central division seat that was given to London be relocated?

As UPC onlookers know all too well, Article 7(2) of the UPC Agreement specifically lists London as the host of one section of the central division, with the other two seats taken by Paris and Munich. The UK, France and Germany were the three biggest countries for European patents in force in 2012, the year before the agreement was signed, so all three were required to ratify the UPC for it to come into force.   

The problem? The UK withdrew from the UPC in July 2020 despite having ratified it two years before.

In an ideal world, the London reference really should be a minor inconvenience – just a simple deletion or switch would do – but it’s unlikely to be that easy when dealing with an intergovernmental treaty. Would the agreement need amending and re-ratifying? Could the inaccurate reference simply be ignored? Which city would replace London, and how would that be agreed? These appear to be questions that still don’t have answers, possibly because no-one knows them.

It seems odd – even disingenuous – therefore, that the committee didn’t even mention these issues in its latest update. The London reference appears to be a rather large stumbling block to the UPC’s implementation, especially one that is apparently going to be finalised in just 12 months from now.

Tight timings

The second problem with the timeline is that it seems, well, ambitious. The committee would have a lot to complete in the eight-month PAP, the most crucial of which (as it admits) would be the judges’ recruitment. Even on a smooth run, you feel that the committee would need everything to fall into place very nicely if it’s going to meet that timeline. It doesn’t seem to leave any wiggle room for unforeseen issues, especially with recruitment.

The main issue, I think, is not whether the UPC will ever become a reality or even a reality in mid-2022, but whether it’s sensible to be making specific predictions when there are so many unknowns. Anyone following this project from the start knows how many twists and turns there have been. Why not say something like: ‘We don’t know for sure when the UPC can or will come into force, but we hope it will be mid-2022’? That would seem more prudent to me.

I always used to say that the UPC would never come to fruition, and I will be more than happy to eat my words if I am wrong. But even if Germany has closed one of the final chapters of the UPC, a mid-2022 launch date seems more like fiction than reality to me.

more from across site and ros bottom lb

More from across our site

A 36-member team from Zhong Lun Law Firm, including six partners, will join the newly formed East IP Group
The Delhi High Court sided with Ericsson against Indian smartphone maker Lava, bringing the companies' nine-year dispute to a close
We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
Tennessee has passed the ELVIS Act, a law that fights against AI models that mimic the voice and likeness of music artists
Rob Stien, chief communications and public policy officer at InterDigital, says the EU has forgotten innovators while trying to solve an issue that doesn’t exist
As Australia’s Qantm IP leans towards being acquired by a private equity company, sources discuss what it could mean for IP firms
Law firms that are conscious of their role in society are more likely to win work, according to a survey of over 23,000 in-house professionals
Nghiem Xuan Bac Pham, managing partner of Vision & Associates, discusses opportunities created by the US-China rift as well as profitability issues facing IP practices
Douglas Leite and two of his colleagues were intrigued by Bhering Advogados’s mission to grow its patent litigation practice
Each week Managing IP speaks to a different IP practitioner about their life and career
Gift this article