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Volume XII, Number 145

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Provisional Application of UPC Agreement Goes Into Effect

On 18 January 2022, the Austrian government deposited its instrument of ratification of the Protocol on Provisional Application of the Unified Patent Court. Austria’s formal ratification of the Protocol means that sufficient member states have now ratified the Protocol, and thus the Protocol has now come into effect.

Ratification of the Protocol is a key step in the creation of the Unified Patent Court because it allows the Preparatory Committee to interview and appoint judges to the Court on a preliminary basis so that the Unified Patent Court itself can come into existence. The exact date when the Court will open is still uncertain. However, the Preparatory Committee for the Unified Patent Court has previously indicated that they expected the interviewing, training and appointment of judges to the Court would take around 8 or 9 months. In practice, now that provisional application has been approved, the Unified Patent Court is likely to come into existence at the end of 2022 or the beginning of 2023.

The establishment of the Unified Patent Court has been a tortuous affair with its opening date being delayed, both by Brexit and two constitutional challenges in Germany. However, following a ruling by the German constitutional court (Bundesverfassungsgericht) last July, the Court was finally given a green light.  Now that the formalities for provisional application of the court agreement have been completed, the realization of the new court is a matter of time.

When the Court comes into existence, it will provide a new forum for enforcing European patents granted by the European patent office and in force in Germany, France, Italy, Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, Latvia, Luxembourg, Malta, Netherlands, Portugal, Slovenia and Sweden. Further European member states are expected to ratify the agreement in the coming months. It will also provide a forum for enforcing Unified patents covering all the above jurisdictions which the European patent office will start to grant as soon as the Court opens.

Given the importance of the new Court we will be providing updates on developments and the strategic considerations that patentees will need to consider over the upcoming months.

© 2022 Finnegan, Henderson, Farabow, Garrett & Dunner, LLPNational Law Review, Volume XII, Number 19
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About this Author

Nicholas Fox Attorney Intellectual Property Law Finnegan Law Firm London
Partner

Nicholas Fox practices intellectual property law with a focus on electronics, telecoms, and software patent litigation. In addition to being qualified as a solicitor, he is also qualified as a European and Chartered British patent attorney, with full rights of audience to appear in intellectual property proceedings at all levels in the English High Court. He is also qualified and admitted as an attorney in New York.

With degrees in mathematics and computer science, Nicholas has technical experience in the areas of electronics and software,...

44-020-7864-2820
Dr. Jochen Herr, LL.M. Partner Germany Partner Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Partner

Dr. Jochen Herr, LL.M., is managing partner of Finnegan’s Munich office. Named as an IP Star in Germany by Managing Intellectual Property, Jochen is one of the rare lawyers in Germany admitted as an attorney at law, a German patent attorney, and a European patent attorney. Jochen has almost 20 years of experience in patent litigation proceedings and is admitted to practice before all German patent infringement courts, the German Federal Patent Court, and the German Patent and Trade Mark Office (DPMA), and the European Patent Office (EPO).

+49 89-2421-8067
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