17 November 2015

The UPC and Unitary Patent: How close are we to implementation?

As we approach the end of 2015, it seems likely that the UPC and Unitary Patent will be in effect from early 2017. Where do things currently stand on some of the key issues yet to be resolved?


Eight Member States have, to date, ratified the UPC Agreement. For the Agreement to come into effect, 13 Member States must ratify, including France (which has ratified), Germany and the UK. In the forthcoming months, Finland, The Netherlands, Lithuania, Italy, Romania and Estonia are all expected to ratify, at which point attention will be focused on the UK and Germany, as the ‘gatekeepers’ for ratification. The UK Government has stated its intentions to complete domestic preparations by Spring 2016, whilst the German government has recently indicated ratification will take place at the end of 2015 / beginning of 2016. 

The Unitary Patent

The EPO is expected to finalise and adopt shortly the fees package for the Unitary Patent comprising the True Top 4 proposal for renewal fees and also the ‘distribution key’ for renewal fees between participating member states.


In October, the UPC Preparatory Committee announced that it had adopted the final version of the Rules of Procedure in the form of the 18th draft edition. Further changes will need to be made to the Rules once the provisions relating to Court fees and recoverable costs are finalised. Following its consultation in May 2015, the Preparatory Committee is expected to adopt the final proposals on fees and costs in February 2016.

In October 2015, a protocol to the UPC Agreement on Provisional Application, which will allow certain parts of the UPC Agreement to be applied before it comes into force was adopted. In particular, holders of standard European patents will be able to register opt-outs during a sunrise period which will be in operation in 2016 (the date is to be confirmed). Opt-outs will be managed through the UPC Case Management System rather than by the EPO as had been the case previously.

In relation to IT, an Alpha version of the UPC Case Management System has been released for user testing. On the important question of the UPC judiciary, appointments are expected to be made in early 2016, following a formal advertisement in December 2015.

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