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

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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.

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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.

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