Setback for the European single patent and the European Unified Patent Court (UPC)
The European Unitary Patent is intended to save effort, time and money for inventors and companies when applying for patents in Europe.
Part of the reform of patents in Europe is an international court, the European Unified Patent Court (UPC), which as a common court of the majority of member states decides disputes on European patents and European patents with unitary effect. Before the UPC can take up work, at least 13 of the 25 participating EU member states must integrate the approval of the UPC into their national legislation, whereby Germany, France and the United Kingdom must be included as countries with the most valid European patents at present. Currently, the agreement has already been ratified by 16 member states.
In the meantime, however, Great Britain has announced that it will not participate in the UPC after all, which also means that the planned location of the central chamber in London will be dropped.
However, the UPC is under discussion in Germany, since German courts will no longer be able to decide corresponding patent disputes and thus lose part of their sovereign rights in case the international court should be active,.
The vote on the law approving the UPC (EPGÜ-ZustG) in the Bundestag in March 2017 was unanimous, but only 35 members of parliament took part. A quorum was not determined, nor did the President of the Bundestag state that the consent law had been passed by a qualified majority.
In spring 2017, a Düsseldorf lawyer filed a complaint with the Federal Constitutional Court to stop the German law, which was supposed to allow the UPC.
On 13 February 2020, the Federal Constitutional Court upheld the constitutional complaint against the German UPC legislation, but at the same time ruled that the law approving the Unified Patent Court Treaty would require a two-thirds majority of the Bundestag, as it interfered with the constitution. The Constitution precisely describes who is responsible for solving legal disputes, and the Bundestag could not simply change this with a normal law.
Now the law for approval of a European Patent Court must be passed by the Bundestag again. It is the aim of the BMJV to remedy the formal deficiency within this legislative period and thus to maintain the Unitary European Patent with a European Patent Court. It is possible that the necessary two-thirds majority will be achieved and thus the UPC will be approved.
However, the organisation of the quorum and the two-thirds majority will be a great challenge in times of the corona crisis.