UPC's Protocol on Privileges and Immunities comes into force

On 27 October 2021, the first of the three treaties underpinning the new Unified Patent Court (UPC) and unitary patent (UP) system comes into force. It is the ‘Protocol on Privileges and Immunities of the Unified Patent Court’ (PPI). Every Member State hosting premises of the court (i.e. the Court of Appeal, CFI Central Division, CFI Regional division and CFI Local division) must accede to the PPI, which underpins the legal status of the court within hosting Member States.

The PPI comes into force on 27 October because it is 30 days following Germany’s 27 September 2021 deposit of its instrument of ratification of the PPI with the General Secretariat of the Council of Europe – Germany’s deposit completed the minimum ratification threshold for the PPI.

The key next step for the UPC to get up and running is the completion of the minimum required accessions to the ‘Protocol to the Agreement on a Unified Patent Court on Provisional Application’ (PPA). The provisional application phase will then begin the following day. Opt outs will begin to be registrable three months after that (the “sunrise period”).

However, the question about the relocation of the London section of the Central Division of the Court of First Instance, or at least the categories of cases designated to the London court in the UPC Agreement, remains to be settled. It is also likely to require amendment of the UPC Agreement. Agreement on this is likely to determine when the participating states trigger the start of the provisional application phase.

The sunrise period, in which opt outs from the new system can be registered, may only last for three months. So decisions about whether and what patents to opt out need to be made, and mandates put in place, before then. We can help you with what you need to know to make the necessary decisions.