Posted: August 16th, 2021

Reported by Dr. Rudolf Teschemacher, Bardehle Pagenberg

Following the decision of the Federal Constitutional Court of June 23, 2021, rejecting the applications for a preliminary injunction against the Act of Approval of the UPC Agreement (UPCA), the German Federal President signed the Law on August 7, 2021 and the Law was published in the Federal Law Gazette Part II, 2021, 850 on August 12, 2021. The Act entered into force one day thereafter.

The German Government is now empowered to deposit its instrument of ratification of the UPC Agreement (UPCA) and the Protocol on its Provisional Application. The UPCA will enter into force on the first day of the fourth month after the deposit of the German instrument of its ratification. Germany is expected not to deposit its instrument of ratification of the UPCA until it is foreseeable that the preparatory work can be terminated in good time before the actual start of the operation of the UPC. For the final preparatory work to start, two further instruments of ratification, acceptance or approval of the Protocol are still necessary.

After the decision of the German Federal Constitutional Court, the Preparatory Committee announced a timetable for the start and execution of the Provisional Application Period, however such a timetable has not yet been published. The Chairman of the Preparatory Committee has envisaged a period of 8 months for this work.

The Act of Approval of the UPCA (in German) can be read here.

2 Responses

  1. Daniel Xavier Thomas says:

    What about Art 7(2) UPCA? Can its wording simply be ignored.
    The members of the Bundestag have been misled by the explanatory note from the Ministry of Justice. This note made very little of the problem of Art 7(2) UPCA.
    What is the legal basis of the duties allotted to London to be transferred “provisionally” to Paris and/or Munich to be later “finally” transferred to another location under Art 87(2) UPCA?
    The PPA still mentions the UK as mandatory country?
    How can an international convention be conform with EU law, or any Constitution of a member state, when a UPC judge can be removed from office without giving him any means of redress. See Art 10 of the Statute of the Court which is part of the Agreement.

  2. TMV says:

    DXThomas shared his advice on the Kluwer Patent blog below. It seriously deserves some reasoned feedback from the EPLAW, doesn’t it ?
    All our clients need, if not security, at least predictability, right ?

    AUGUST 18, 2021 AT 4:08 PM
    I do not want to repeat what I have said in a parallel thread, but it is not by dodging the problem created by the mention of London in Art 7(2) UPCA that the UPC will be working on solid legal foundations.

    The problem is serious and cannot be ignored!
    I have not yet seen a convincing and compelling argument allowing to ignore London in Art 7(2) UPCA.

    I am even surprised that lawyers can seriously envisage the “provisional” transfer of the duties allotted to London to Paris and/or Munich.

    The whole communique of the UPC Preparatory Committee looks more like wishful thinking than looking at the reality created by the Brexit. As long as this reality has not been duly and correctly faced and the necessary legal steps not taken, it does not appear reasonable to decide anything for the owner of a European patent than a systematic op-out.

    If the UPC goes nevertheless on the road with all this problems, I fear that other complaints will be formulated, either before the CJEU or before national constitutional courts.

    It would have been much better to ask the CJEU to give its opinion on the UPCA as it had been requested for EPLA.

    Even if the proponents of the UPCA were reluctant before Brexit, the new situation created by Brexit should have led to a request for opinion by the CJEU on the UPCA as it stands. It is difficult to understand why this has not been done.

    Trying to go through a brick wall, can hurt very badly.

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