On November 22, 2011, the General Secretariat of the Council of the European Union has sent Document 17317/11 to the Permanent Representatives Committee (COREPER Part 1) titled Draft Agreement on a Unified Patent Court and draft Statute – Draft Declaration for an operational UPC – Revised Articles 18, 19, 58, 58a, 58d and 59. Following up to discussions having taken place in the Permanent Representatives Committee on November 18, 2011, on the basis of the Note to the Permanent Representatives Committee contained in 17120/11 REV 1 (not published), the Polish EU Presidency has submitted, for discussion on November 23, the following texts :

  • A draft Declaration, to be made by the Contracting Member States upon signature of the Agreement, ensuring that the future Unified Patent Court shall be operational at the moment its enters into force (see Annex I) as referred to in point 8 of the above Note;
  • Revised drafts for Articles 18, 19, 58, 58a, 58d and 59 (changes in relation to the previous version set out in 16741/11 are underlined) (see Annex II), which reflect proposals of the Presidency as outlined in the above Note.

The Draft Declaration sets out the political will power not only to rush the Unified Patent Court (UPC) through as fast as possible but also to make sure that it will be operational immediately after it has been formally set up (Annex I):

The Contracting Member States having signed the Agreement on a Unified Patent Court consider that the Agreement should be ratified as quickly as possible and that the Unified Patent Court should become fully operational upon the entry into force of the Agreement without undue delay. To this end, they undertake to use their best efforts and affirm their willingness to start instantly with the preparation for the expeditious establishment of the Unified Patent Court.

The Contracting Member States are determined to ensure that the Unified Patent Court achieves a high degree of efficiency and delivers expeditious and high quality decisions from the outset. With this in mind they think it necessary that all practical arrangements for the proper functioning of the Unified Patent Court are already in place or are duly prepared before the entry into force of
the Agreement.

The Contracting Member States intend to set up without any delay a Preparatory Committee which will be composed by their representatives. The Preparatory Committee shall prepare the practical arrangements and set out a roadmap for the early establishment and coming into operation of the Unified Patent Court. It may establish subgroups as appropriate and make use of teams of


They even go into the details like providing furniture as well as an IT infrastructure for the Court:

The Contracting Member States emphasise that, for the proper functioning of the Unified Patent Court, it is important that from the outset it has appropriate facilities at its disposal. The Contracting Member States hosting a local, regional or the central division of the Court of First Instance or the Court of Appeal affirm their intention to have the appropriate facilities in terms of premises, furniture, office and IT equipment [and administrative support staff] in place before the entry into force of the Agreement. The Preparatory Committee shall serve as an interlocutor for the host Contracting Member States and provide the necessary support for the organisational arrangements.

The roadmap for finalising the Rules of Procedure is laid out as follows:

The Contracting Member States recall the importance of appropriate Rules of Procedure for the Unified Patent Court and of their uniform application, which are vital to guarantee that the decisions of the Court are of the highest quality and that proceedings are organised in the most efficient and cost effective manner. They affirm their willingness to draw up a complete and detailed set of Rules of Procedure before the entry into force of the Agreement. The Preparatory Committee shall complete a first draft of Rules of Procedure on the basis of input of expert judges, lawyers and industry representatives within six months. This draft should be the basis of a broad consultation with stakeholders before it is finalised with a view of an early adoption by the Administrative Committee. The adoption of the Rules of Procedure should be preceded by a consultation with the European Commission on their compatibility with Union Law.

Annex II of the Document deals with the budget of the Court, financing of the Court, clauses concerning a transitional period of seven years, technicalities of ratification, depositing and notification, and revision as well as entry into force.

About The Author

Axel H. Horns

German & European Patent, Trade Mark & Design Attorney

2 Responses to Rushing To Set Up The EU Unified Patent Court

  1. [...] we reported that European executive authorities are now, as the end of the year approaches, “rushing to set up the EU Unified Patent Court“. (see Document 17317/11). But also the legislative authorities in charge – the [...]

  2. [...] gut verfolgen kann, z.B. auch auf unserem Schwester-Blog ksnh::law (zuletzt z.B. [1], [2], [3], [4]), ist es schon schwieriger, sich einen vernünftigen Überblick über die geplanten [...]