Dr. Markus Herzog

UPCA - Light at the end of the tunnel


Start of the UPC probably in spring 2022

On 26 November 2020, the German Bundestag adopted the ratification law for the Unified Patent Court Agreement (UPCA) with the 2/3 majority of its members required by the Federal Constitutional Court[1]. And it is considered certain that the Bundesrat will also approve the law in its session on 18 December 2020.

There may well be new constitutional complaints against the ratification of the UPCA. However, these are only given a slim chance of success, as Prof. König has meanwhile taken over the chairmanship of the competent second senate of the Federal Constitutional Court. In her special vote, Prof. König had already considered the first constitutional complaint to be inadmissible.

The other points raised in my newsletter[2] about the withdrawal of ratification by the United Kingdom, especially the question of the location of the Central Chamber division in London, do not seem to be an obstacle for any member of the Preparatory Committee, despite numerous reminders. The prevailing opinion is that the "London" cases will be divided between the locations in Paris and Munich. So, all traffic lights for the UPCA to enter into force are green.

So what could the timetable for entry into force look like?

According to unofficial estimates, the preparatory work required for the UPC to become operational will take about 6 to 8 months. During this time, judges will have to be hired, rooms rented, furniture ordered and IT set up. It is therefore expected that initially only the protocol on the provisional applicability of the UPCA will be filed. This could take place in early 2021.

Depending on how much the preparatory work is affected by COVID 19, this work could then be completed between autumn 2021 and the turn of the year 2021/2022. Subsequently, the Federal Government would then also deposit the ratification law, so that the UPCA could then possibly enter into force between 1 January 2022 and 1 April 2022.

Applicants should therefore now consider whether they want to make use of the "opt out" option for their existing European patents, which removes existing European patents from the jurisdiction of the UPC. The so-called "sunrise period", which offers the possibility of opting out even before the UPCA comes into force, is expected to start in autumn 2021.



[1] Newsletter of 23 March 2020: "UPC Agreement

[2] Newsletter of 23 July 2020:"UK withdraws ratification of the UPCA


Dr. Markus Herzog
, Dipl. -Phys., Dr. rer. nat., Patent Attorney, Partner
Weickmann & Weickmann, Patent- und Rechtsanwälte PartmbB, Munich
Tel.: +49 (89) 455630 | E-Mail: mherzog@weickmann.de



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