Before knowing the FCC`s decision on the German complaint, the UPC Preparatory Committee must preferably resolve a crucial issue. Support from at least three Member States to the UPCA`s Provisional Application Protocol, including Germany, is needed before the ECA – and the UPC – can begin. A new patent and patent law enforcement system will be put in place for patent protection in Europe and is expected to start in 2022. There are two main elements: of course, I have heard some wishes to take this opportunity to extend upca to “non-EU member states”. While I believe (for what I think is important here) that such an enlargement is compatible with ECJ Opinion 01/09, I firmly believe that, for many reasons that end up delaying the entry into force of the system, it is not desirable to tackle this problem now. In general, I think that any legal system is alive and not static. Any legal system, and in particular its rules on certain procedural issues, are called into question, even if they last more than ten years. The UPC is not and will not remain different. I believe that the UPC rules have been drafted in such a way that the court is able to answer all procedural legal questions with valid arguments. European industry has invested a great deal of time and effort in preparing for the long-awaited patent reform. By signing the ECA, the signatory states undertake to apply provisionally the institutional, organizational and financial aspects of the UPCA.

Upon the entry into force of the Protocol, the UPC body is created (as such) and acquires legal personality. The Management Committee, the Budget Committee and the Advisory Committee shall be set up at the beginning of the provisional application phase and shall then assume responsibility for the preparations by the PREPARATORY Committee of the UPC. The Unified Patent Court, a new supranational court specialising in patent litigation, will have broad and exclusive jurisdiction over the infringement and validity of European patents and European patents with unitary effect. The Commission and the European Parliament have tried to resolve the large number of complaints lodged on the basis of the same EP, by allowing the new European Parliament to also bring disputes in the European Parliament. However, for a transitional period, the holder of an MOU may choose to “unsubscribe” from the EP system and retain the right to negotiate designations separately before national courts. At the end of this period (after 7 years, although it can be increased to 14 years), all EPs that have not been unsubscribed will be judged “centrally” via the UPC system. For more information on the consequences of an opt-out or non-opt-out, see the opt-out section of this guide and our article on intellectual property management (see below). During the preliminary phase of the application, the Organization will be able to conclude the necessary agreements with third parties and formalize all the preparatory work of the Preparatory Committee. The completion of the recruitment of judges is an extremely important area that cannot be achieved before the preliminary phase of the application. Once the judges have been appointed, the two Presidents may be elected, the Bureau established and the Registrar and Deputy Registrar appointed. Before Ireland can accede to the UPC Convention, a constitutional referendum is needed, as the agreement provides for the transfer of jurisdiction from the Irish courts to the new International Court of Justice for certain patent disputes. It is up to the government to decide on the date of such a referendum. If, following the results of its consultation (reported here), the Federal Government decides to proceed with the bill allowing it to ratify the UPC Convention, it is important to ensure that the withdrawal of the United Kingdom is legally valid, as this would eliminate a ground for a constitutional appeal threatened by the FFII (reported here), that is…