The Unified Patent Court (UPC) is on its way!

Following Austria’s decision to deposit its instrument of ratification, the Protocol to the Agreement on a Unified Patent Court on provisional application has entered into force on 19 January 2022. This means the final preparations for the official start of the Unified Patent Court system can begin at long last.

Following Austria’s decision to deposit its instrument of ratification, the Protocol to the Agreement on a Unified Patent Court on provisional application has entered into force on 19 January 2022. This means the final preparations for the official start of the Unified Patent Court system can begin at long last.

When Austria deposited its instrument of ratification of the Protocol on 18 January 2022, it constituted the required 13th participating Unified Patent Court Member State completing the ratification process. It caused the so-called “Protocol to the Agreement on a Unified Patent Court on provisional application” (PPA) to enter into force on 19 January 2022. The PPA in turn foresees in the provisional application of certain articles of the Unified Patent Court Agreement (UPCA).

The period of provisional application is expected to last eight months. During this period the technical and infrastructural preparations for the Unified Patent Court (UPC) will need to be completed in order to allow the entry into operation of the UPC system. Once the UPC is fully operational, Germany will deposit its instrument of ratification of the UPCA which will then become operative on the first day of the fourth month after the deposit and allow the Unified Patent Court to start working. The Court might be operational by the end of this year, but of course more delays cannot be excluded and according to some early 2023 would be a more likely start date.

Once the new court becomes operational, it will have jurisdiction over the new Unitary Patents (UPs) and all European Patents (EPs) already granted by the EPO unless an opt-out is filed. An opt-out will keep the EP in the current system, in which litigation must occur in the national courts.

Before the UPC opens its doors, a so-called “sunrise” period is planned during which patentees can file opt-outs. According to the EPO, this sunrise period is supposed to start three months before the UPC becomes operational.[1] This period is very important since it is no longer possible to opt out once an action has been brought before the UPC, and this period ensures that the patent holders can opt out before this is possible.

It should therefore now be the focus of all patentees to timely prepare for this opt-out process and start considering which patents they will carry into the new system. The Case Management System of the UPC is already online in a “test phase” at https://cms.unified-patent-court.org/login so patentees can already acquaint themselves with the opt-out process.


22 January 2022


[1] https://www.epo.org/service-support/faq/procedure-law/upc.html.


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