As a Hungarian lawyer, recent developments in the Unified Patent Court (UPC) have highlighted the uncertainty surrounding representation for legal professionals from non-ratifying countries. In a notable case between Abbott and SiBio Biosciences, the UPC Court of Appeal suspended the enforcement of a preliminary injunction in Ireland due to the country’s failure to ratify the UPC Agreement.
Ireland, alongside Hungary and several other EU states, has signed but not yet ratified the agreement, delaying full participation in the UPC system. For Hungarian lawyers, this raises concerns about our right to represent clients before the UPC. According to Article 48(1) of the UPC Agreement, only lawyers authorized to practice in ratifying countries can represent clients before the court. Hungary's non-ratification means that legal professionals here remain in limbo, unable to fully engage with this significant new patent system.
It's also important to note that the UPC Agreement, as an international legal instrument, holds a higher hierarchy in law. Therefore, Rule 286 of the Rules of Procedure of the UPC cannot override the provisions of the UPC Agreement. In my view, this means that lawyers from non-contracting member states cannot rely on Article 1 of Directive 98/5/EC, which allows for the free movement of lawyers within the EU. Without ratification, the right to represent clients at the UPC for lawyers from non-contracting states remains restricted.
However, as part of AIPEX, our Hungarian attorneys and those from other non-ratifying countries are able to tap into our pan-European network of patent attorney firms who are fully authorized to act before the UPC. The AIPEX network of IP experts can cover all the major European jurisdictions.
Links to legisltaion
https://www.unified-patent-court.org/sites/default/files/upc_documents/agreement-on-a-unified-patent-court.pdf
https://www.unified-patent-court.org/sites/default/files/upc_documents/rop_en_25_july_2022_final_consolidated_published_on_website.pdf
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A31998L0005
Written by AIPEX Patent Lawyer Dr. Ádám György LL.M.
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