Friday, 2 October 2015

Sunrise period for opt-outs in the making

Sunrise period for unitary patent in the making

The new unified patent court will be competent for European patents with and without unitary effect. Also existing patents and patent applications are included. This means that a central revocation is possible the moment the UPC becomes into effect.

If you don't want the UPC to apply to your patent, at least for the coming years, you can file an opt-out. The problem is that the opt-out only takes effect upon its entry into the register of the unified patent court: No unified patent court, no register, no opt-outs. If thousands of opt-outs are filed on day one, it may take a while before they shows up in the register. In the meantime an action may have been brought against you.

Yesterday a new Protocol to the UPC Agreement has been signed by the first 7 participating member states, which may solve this problem. 

The protocol allows some parts of the Agreement on a Unified part court to come into effect before the Agreement itself has done so. Most of the articles that would come into effect before the full Agreement are of an institutional nature, for example: Article 1: Establishing the Unified Patent Court; Articles 15-19: Appointment of Judges; Article 36-39: Budget and Financing. As the Unified patent court should receive cases starting at the first day the Agreement comes into effect, having appointed judges before that is probably a sensible idea.

Among the articles of the Agreement that are to come into effect early is also Article 10: the Registry. Thus this protocol makes it possible to have a sunrise period for opt-outs. The unified court confirms that early registration of opt-out demands will be possible.

The  protocol was signed yesterday October 1st 2015, in the sidelines of an EU Competitiveness Council meeting. 

The Minister of the Economy and Foreign Trade of Luxembourg, Mr. E. Schneider at the signing ceremony

For those who are interested, more pictures and videos of the signing ceremony are available at the European Council website.

The protocol is not in effect yet, and in fact the requirements for the protocol to become in effect look rather similar to the requirements for the agreement itself. The Protocol enters into force the day after 13 Signatory States of the Agreement on a Unified Patent Court including Germany, France and the United Kingdom, have signed the protocol and have either ratified, or informed the depositary that they have received parliamentary approval to ratify, the Agreement on a Unified Patent Court. The underlined condition is different from the condition for the Agreement.

This means that the protocol will not be effective until the full Agreement is very near indeed.The required number of states for the Agreement must have given parliamentary approval, though they need not yet have deposited the ratification. Apart from that, also the protocol needs 13 signatures ; Only 7 signatures have been collected for the protocol as of yet.

Photo "Orange sunrise" by Wyncliffe obtained via Flickr under a CC Public Domain License (no changes made). Photo of Mr. Schneider from the European Union 

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