Everything looks set for the Unified Patents Court to go ahead this year but…. Are we really out of the woods yet?

Two items of UPC news have caught the eye in the early weeks of January.

First, the incoming French Presidency of the European Commission has made it unequivocally clear that it supports the implementation of the Unified Patents Court Agreement (UPCA), giving rise to the opening of the court itself, and the creation, for the first time, of a Unitary Patent in Europe, covering all EU member states that have ratified the UPCA. The new Presidency has indicated that it wants the system in place by the end of its term. Most commentators think that the remaining steps required in the preparation period will take a little longer than six months, but if the French-led European Commission could get to a point where the German ratification was complete, then an unstoppable four month countdown clock will have started, and the French Presidency will probably see that as an achievement of its goals.

Secondly, Austria has deposited its ratification papers, according to the UPC website, and that triggers the start of the Phase for Provisional Application. Although there is no deadline by which this phase need to be completed, it is a big step forward and means that the remaining practical steps, for example appointing judges and establishing the IT system, can begin in earnest. The UPC website indicates that the period in question is likely to be at least eight months. It goes on to say:

“When the State Parties are confident that the Court is functional, Germany will deposit its instrument of ratification of the UPC Agreement, which will trigger the countdown until this Agreement’s entry into force and set the date for the start of the UPC’s operations.”

As indicated above, it is likely that the French Presidency would like to see that happen before the end of its six month term of office if at all possible, but this will depend on the progress made between now and then.

However, is that really the last legal obstacle overcome?

The German “not for profit” organisation “The Association for the Promotion of a Free Information Infrastructure” is just one of several bodies which have openly questioned the legality of the UPC. There seem to be several grounds for this, not least the continuing references to the United Kingdom in the Agreement, which has not been “cleaned up” since Brexit. Further, there are questions regarding the role of the Court of Justice of the European Union (CJEU), which has yet to give a view of the legality of the UPCA.

There is always in a risk that, seeking to push things through for political expediency, some issue is over-looked or brushed past without the necessary attention to detail. Those opposed to the UPC, and litigants looking to avoid its judgments will be alive to these issues and legal challenges are almost inevitable.

What does this mean?

One possibility is that a well-funded person or organisation may mount a legal challenge to the legality of the new system before it even gets off the ground. If such a case found its way to the CJEU, as it very well might, that could cause delay at the very least, and even a permanent blockage. However, it seems unlikely that any such claim would get political support, particularly in Germany. The French Presidency having stated, so clearly, that it has an objective of bringing the new system into existence, it would be unlikely the new German government would do anything other than provide support.

However, a more sinister threat to the UPC system is the risk that early litigants, faced with a possible pan-European injunction and/or a substantial multi-national damages award, might appeal on the basis of the questionable legality of the system, and get the matter in front of the CJEU through that route.

The threat of getting involved in such an action might be an active deterrent to potential litigants in the UPC, but only time will tell.

The road to a functioning UPC and UP continues to be long winding one.