On October 1 2015, a Protocol to the UPC Agreement was signed by first seven member states [1]. It is open for signing by the remaining Signatory States of the UPC Agreement from this date.
The aim of the Protocol is to allow for some provisions of the UPC Agreement to be applied early, i.e. before the Court opens, in a provisional application phase. The Protocol will enter into force the day after 13 Signatory states (including Germany, France and the UK) have ratified the UPC Agreement.
This provisional application phase will allow for the recruitment of judges and testing of the IT system. Having judges appointed and trained at the date the Court opens is important, as it is conceivable that the Court could receive cases essentially on the first day the Agreement comes into effect.
Further to this, the protocol also allows for the Registry to be operational, which would possibly allow for patent holders to file their opt-out requests for European patents and also Supplementary Protection Certificates (SPC) before the Court opens, during a so called “sunrise period”.
The articles that would come into effect before the Agreement are thus mainly of an institutional character, Article 1-2, 4-5, 6(1), 7, 10-19, 35(1, 3 and 4), 36-41 and 71(3) of the Agreement on a Unified Patent Court and Article 1-7(1), 7(5), 9-18, 20(1), 22-28, 30, 32 and 33 of the Statute of the Unified Patent Court. Article 1 is related to Establishing the Unified Patent Court. Articles 15-19 are related to the appointment of Judges and Article 10 is related to the Registry [2].
Sofia Willquist, European Patent Attorney