Just another timing set back or end of the road for the Unitary Patent and UPC?

On June 9th 2017, news reached us of yet another possible set-back on the road to the introduction of  the European Unitary Patent and Unified Patent Court (UPC). It took a few days for more information to be available.

The update is that not only have we had delays resulting from the UK general election held on June 8th but there may be a more serious hurdle to be overcome that is not just going to impact on the timeline but possibly the feasibility of the entire system.

The German Federal Constitutional Court has asked the German Federal President not to execute the national legal instruments necessary for Germany’s ratification of the Unified Patent Court Agreement on a Unified Patent Court (UPC) and the ancillary protocols to this agreement.

As readers of our blog will know, the new European Unitary Patent Package – including the establishment of the new Unitary Patent as well as the implementation of the new Unified Patent Court (UPC) – is due to enter into effect after ratification of the UPC Agreement as well as of the ancillary protocols (e.g. concerning provisional application- see our blog post on provisional application) by a sufficient number of member states including the United Kingdom and Germany. After the United Kingdom confirmed its willingness to proceed with the ratification process despite Brexit, the start of the new system was initially expected for December 2017. However, the UK general election caused delays in the UK parliamentary processes, and in a press release of June 7, 2017, the Preparatory Committee of the Unified Patent Court finally publicly announced (see our blog post) that this target date for start of the UPC cannot be met due to an insufficient number of ratifications at this point in time.

This move by the German Federal Constitutional Court now creates further doubt regarding the start (date) of the new Unitary Patent and Unified Patent Court system.

So, what exactly happened and what next?

The legislation for the ratification of the UPC Agreement by Germany had already been passed by the relevant German legislative bodies.  However, the legislation still has to be signed off by the German Federal President to achieve formal ratification by Germany.

A German individual filed a constitutional complaint with the competent German Federal Constitutional Court against these national statutes. The court thus asked the German Federal President not to execute the ratification instruments in order not to create a situation that might be found, at a later date, to violate the Constitution of the Federal Republic of Germany.

The constitutional complaint will not be published by the German Federal Constitutional Court.  A decision will have to be made by the Court as to whether the complaint has merit or not. However, in the meantime, the Federal Constitutional Court has requested the German Government not to enact the national legislation that would result in Germany ratifiying the UPC Agreement. If the complaint is upheld, such a finding by the German Court could de-rail the UPC and unitary patent system entirely, at least in its current form. For those who see advantages to the implementation of the new UPC system, it is to be hoped that the complaint will be rejected. The UPC Agreement was signed in February 2013, so any constitutional issues would have been apparent since February 2013. Nevertheless, even if the complaint is eventually rejected by the German Federal Constitutional Court, German ratification is now likely to be delayed for at least several months.

Meanwhile, it remains to be seen what the new UK Government will do as regards ratification of the UPC Agreement. We continue to watch and will keep you updated.

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