Unified Patent Court Update

Jane Lambert

 

Much has happened since my last article on the Unified Patent Court ("UPC").  The court will open for business on 1 June 2023 and not on 1 April 2023 as I stated on 22 Oct 2022 to allow users more time to prepare themselves for the strong authentication which will be required to access the court's case management system ("the CMS") and to sign documents (see Adjustment of the timeline – Start of the Sunrise Period on 1 March 2023 on the UPC's website 5 Dec 2022). The new website which I mentioned in my previous article is now up and running at https://www.unified-patent-court.org/en.

The new website displays 

• photos of the UPC's buildings, 
• a map of Europe showing the EU member states in blue, member states that have signed the Unified Patent Court Agreement in a darker shade of blue, the states in which the agreement will come into force on 1 June 2023 in dark blue and everywhere else including the UK in grey,
• information on opt-out, registration as a representative before the UPC and FAQ,
• the latest news, and
• important links 

on its home page,

The court's judges whose appointment I mentioned in my previous article have now undergone advanced preparatory training in the UPC's Rules of Procedure (see Launch of the first training for all UPC appointed judges 17 Jan 2023).  Training in the court's internal rules and practice was also given to court staff immediately afterwards (see Update on UPC Training Activities 10 Feb 2023).  Alexander Ramsay, who chaired the committee that handled all the preparatory work, has been appointed the court's first Registrar and Axel Jacobi has been appointed as his deputy (see The Unified Patent Court appoints its first Registrar and Deputy-Registrar  19 Jan 2023).

Germany deposited its instrument of ratification of the UPC Agreement on 17 Feb 2023 nearly 10 years after it had signed it thereby permitting the sunrise period to start on 1 March 2023 (see Germany ratifies the Agreement on a Unified Patent Court  21 Feb 2023).  The sunrise period has now started and holders of European patents can now decide whether they want to opt out of the exclusive jurisdiction of the UPC pursuant to art 83 (3) of the UPC Agreement.   To help them to do so, the court has provided information on filing an opt-out and the following FAQ.

Those who are eligible to practise before the UPC may now apply to be listed as representatives before the court pursuant to art 48 (3) of the UPC agreement.  These include 

• lawyers authorized to practise before the courts of a Contracting Member State pursuant to art 48 (1) and 
• European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to art 134 of the EPC and who have appropriate qualifications such as a European Patent Litigation Certificate pursuant to art 48 (2).  

Art 2 (c) defines "Contracting Member State" as  "a Member State party to this Agreement".  Rgar would seem to include countries that have signed the UPC Agreement but not yet ratified it such as the Republic of Ireland.  In this regard, readers are reminded that James Bridgeman SC is a member of these chambers

Anyone requiring further information may call me on +44 (0)20 7404 5252 or send me a message through my contact page.

The Northern Ireland Protocol: The Windsor Framework

Author Maximilian Dorrbecker Licence CC BY-SA 2.5   Source Wikimedia Commons

 

Jane Lambert

One of the provisions of the settlement that ended the inter-communal violence in Northern Ireland was that there should be no immigration controls or customs posts between Northern Ireland and the Irish Republic.  There was no problem in complying with that provision so long as the United Kingdom and the Republic remained members of the European Union. When HM government made clear that the United Kingdom would leave not only the EU but also the single market and customs union there was a risk that the Irish Republic would have to restore border controls in order to maintain the integrity of the European single market. 

There were two ways of preventing that outcome:

• the whole UK could continue to abide by at least some of the single market rules;  or
• Northern Ireland could remain in the single market but there would be customs checks between Great Britain and Northern Ireland.

Mrs May proposed the first course believing that no British Prime Minister would countenance a border between two parts of the United Kingdom but her party failed to support her. Her successor opted for the second which was supported by the party. The option was eventually incorporated into the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community as the Protocol on Ireland/Northern Ireland.

The difficulties that Mrs May had anticipated quickly occurred.  As I noted in British Proposals for Renegotiating the Northern Ireland Protocol on 29 July 2021:

"Immediately after the end of the implementation or transition period provided by art 126 of the withdrawal agreement, there was disruption in the supply of goods from Britain to Northern Ireland. These led to street protests and calls for the denunciation of the Protocol if not the whole of the withdrawal agreement."

The British government's objections to the Protocol were set out in the position paper, Northern Ireland Protocol: the way forward (CP 502).  The administration of the previous Prime Minister but one introduced legislation into the House of Commons which would have required courts and civil servants to disapply those provisions of the Protocol to which the government objected.  In response, the European Commission indicated that it was prepared to negotiate changes to the Protocol and its application which would meet at least some of the British government's objections while reserving its right to bring non-compliance proceedings should the government continue on its course.

Such negotiations were begun by the administration of the former Prime Minister but one and were continued by his successors. They have resulted in the release of a flurry of documents from the UK and the Commission on 27 Feb 2023 which are referred to collectively as "the Windsor Framework."  Probably the most important of those documents is the Windsor Political Declaration by the European Commission and the Government of the United Kingdom which sets out the understanding of the British government and the Commission to change the operation of the Protocol.  The declaration is not a treaty but a statement of the parties' intentions.   It will have to be implemented by legislation in both the UK and the EU.

One of the other documents released by HM government is  The Windsor Framework: A New Way Forward presented to Parliament by the Prime Minister at the command of the King.  That sets out the British government's explanation and amplification of the Political Declaration and its arguments in favour of it.  The equivalent document from the Commission is a fact sheet which can be downloaded from The Windsor Framework: a new way forward for the Protocol on Ireland/Northern Ireland on the Commission's website.

The Windsor Framework is not a done deal.  Scepticism has been expressed by some politicians in England and Northern Ireland. However, the Labour Party has offered to support the government in passing implementing legislation which should enable it to outvote any opposition from Conservative and Ulster Unionist MPs.

As this is primarily an intellectual property blog I do not propose to chronicle the implementation of the Framework. However. it does mark an improvement in relations between the UK and EU which should facilitate British participation in Horizon Europe.   Such participation should result in inventions in the UK.  This is the most encouraging news that I have been able to report since I set up this publication.   Anyone wishing to discuss this article with me may call me on +44 (0)20 7404 5252 during British office hours or send me a message through my contact form.