Off we go! The Unified Patent Court is officially born.

The entry into force of the Protocol on Provisional Application of the UPC Agreement has been a major
milestone for the actual birth of the Unitary Patent Court.

According to paragraphs a and b of Article 3(1) of the Protocol, there are two alternative conditions for the entry into force of the Protocol, namely:

(a) either the Protocol can be « signed in accordance with Article 2(2)a. or signed, and ratified, accepted or approved this Protocol in accordance with Article 2(2)b.; or

(b) the Signatory States “declared by means of a unilateral declaration or in any other manner that they consider themselves bound by the provisional application of the articles of the Unified Patent Court Agreement mentioned under Article 1 of the Protocol.

Austria was the first Member State to ratify the UPC Agreement, and now on the 19th of January 2022 it also deposited its instrument of ratification of the Protocol on Provisional Application of the UPC Agreement. The Austrian ratification being the thirteen ratification of the Protocol, signals the entry into force of the Protocol. (see here for the official declaration of its entry into force).

The PAP will last at least eight months and will be used to solve a series of practical issues necessary for the functioning of the Unitary Patent Court:

  • the set up of the IT system of the Court
  • the completion of the Case Management System,
  • adoption of the Court’s budget ;
  • the recruitment of the staff, including selection and appointment of the Judges, and,
  • the settlement of the premises for the Court
  • inaugural meetings of the governing bodies of the Court

The plan looking forward is for Germany to deposit its instrument of ratification of the UPC Agreement, which in its turn will set off the countdown for the entry into force of the Agreement. This will happen when the preparatory works (budget, recruitment etc) are completed.

We are surely entering a new era in the patent world.

Off we go! The Unified Patent Court is officially born.  Off we go! The Unified Patent Court is officially born. Reviewed by Frantzeska Papadopoulou on Thursday, January 20, 2022 Rating: 5


  1. Whether the PAP has legally entered into force is not really clear. Mr Ramsay has announced a declaration to be signed at the COREPER, but no such ceremony has been announced. Would it have taken place, it is more than certain that the Preparatory Committee would have heralded it loud and clear.

    Replacing UK by IT is in principle acceptable, provided that all the signatory states agree, or at least those having ratified up to now.

    Amending in such a way Art 3 of the PAP is however not changing anything as far as Art 7(2) UPCA is concerned. In the explanatory note for the second ratification a reference to Art 31 VCLT was made. But nothing has apparently happened.

    Whilst an agreement on Art 3 PAP seems possible, it is more than doubtful that an agreement on Art 7(2) UPCA is possible. I cannot see IT and NL accepting that the duties originally allocated to London will “provisionally” be transferred to Paris and/or Munich. This is the more since Mr Ramsay, in his latest interview in JUVE, clearly mentioned the fact that in the end there could only be 2 sections in the central division. Should three sections remain, it is also not sure whether FR and DE would not prefer to keep the very interesting files in IPC classes A and C for themselves and shift less interesting technical domains to a third and why not even a fourth location.

    The three locations were only chosen as none of the three contenders FR, GB and DE would not let loose and claimed the whole central division for themselves.

    What good is it deciding the provisional application of the UPC, when such a Damocles sword hanging over the UPC?

    Should the files originally meant to go to London be, “provisionally” or not, transferred to Paris and/or Munich it is possible to consider that such a court is functioning in breach of Art 6(1) ECHR. How can a decision taken in Paris and/or Munich on files in classes A and C be enforced?

  2. According to which part of the UPCA and the PAP (and its “authentic” interpretation…) “the existing seats and sections of the central division (in Paris and Munich) will temporarily deal with all the central division cases” ?

    Why Paris and Munich can become “temporary” seats and Milan or The Hague cannot?

    Why the "authentic interpretation" can be applied to art. 3 PAP and not to art. 7(2) UPCA?


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