The UPC provisional application phase has begun
Yesterday, 19 January 2022, the UPC provisional application phase ("PAP") came into force following Austria's ratification of the protocol on 18 January 2022 as the thirteenth Member State.
With PAP, some of the provisions in the UPC Agreement come into force prior to the actual entry into force of the UPC. The purpose being to ensure the functionality of the UPC when it starts. PAP coming into force means that the practical UPC preparations can start in earnest; such as the recruitment of judges and the completion of IT systems. PAP is expected to last around eight months.
The UPC Agreement itself, entailing the actual entry into force of the UPC, comes into force on the first day of the fourth month after Germany submits its ratification. Germany is - following lengthy proceedings about the UPC before the German constitutional court - at present ready to submit its ratification. However, Germany is waiting to submit its ratification until the preparations under PAP are so far along that it is ensured that the UPC will function when it comes into force.
Uncertainty about the future of the UPC has existed for a long time, among other things due to Brexit and the German constitutional issues. However, now the UPC project seems to become reality as early as the end of 2022 or the beginning of 2023.
For patentees, the entry into force of PAP means that it is time to carefully consider whether you are ready for the UPC; including whether you should opt out of the UPC in relation to certain European patents, so that only the national courts can hear cases about such patents. During the end of PAP, there will be a so-called "sunrise period" in which the proprietors of European patents can opt out of the UPC in relation to their European patents - prior to the UPC entering into force.
Find more information on the provisional application phase and opting out of the UPC for European patents, and more information about the UPC on our UPC website.