Germany ratifies UPC Agreement ahead of 1 June 2023 court start date

Germany’s ratification was confirmed by the country’s Federal Ministry of Justice late last week. It means the UPC Agreement, one of the main treaties that underpins the proposed new patent court system, will enter into force on 1 June 2023, enabling the UPC and unitary patent framework to become operational from that date. The first day the court could sit is likely to be Monday 3 June.

The UPC is being set up to provide a dedicated judicial system for litigating new unitary patents as well as traditional European patents that are not specifically opted-out of the UPC’s jurisdiction. European patents that are opted-out will remain subject to the sole jurisdiction of national courts during the UPC’s transitional period, which will last at least seven years.

The UPC system has been years in the making. It will comprise a system of central, regional and local divisional courts, with a UPC Court of Appeal in Luxembourg and the Court of Justice of the EU (CJEU) the final arbiter on points of EU law in respect of disputes over unitary patents or non-opted out European patents.

The project has been the subject of significant delays, not least due to legal challenges brought against German ratification previously and, more recently, IT issues posed by the court’s electronic Case Management System.

Under the UPC Agreement, the UPC system cannot take effect without the treaty being ratified by 13 EU member states, provided that number includes Germany, France and Italy – the three EU countries with the most European patents in effect in 2012, with Italy taking the place of the UK which withdrew from the UPC system following Brexit. On Friday, Germany became the seventeenth country to ratify the UPC Agreement, joining France and Italy among others in doing so.

Most of the remaining EU member states have said that they intend to join the new UPC system in due course. This includes Ireland, where a referendum on the issue must first be held and is expected to take place by summer 2024.

Experts at Pinsent Masons have urged all businesses – even those that do not now or have not ever needed to get involved in patent litigation – to prepare for the UPC becoming operational and have developed a checklist to support businesses with those preparations.