Federal Constitutional Court clears the way for the Unified Patent Court (UPC)
The European Unitary Patent is intended to save effort, time and money for inventors and companies when applying for and enforcing 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 ratify the treaties, whereby Germany, France and the United Kingdom had to sign as countries with the highest rate of valid European patents. Currently, the agreement has already been ratified by 16 member states.
The UK had ratified the treaties in 2018. However, in the meantime the United Kingdom has withdrawn its ratification of the UPC , which also means that the planned division of the central chamber in London will be dropped and probably moved to Milan, Italy.
In Germany the UPC is under discussion as a number of the patent disputes will be moved from German courts to the UPC once it becomes active.
The vote on the law approving the UPC (EPGÜ-ZustG) in the Federal Parliament in March 2017 was unanimous, but only 35 members of parliament took part. A quorum was not determined, nor did the President of the Federal Parliament state that the consent law had been passed by a qualified majority.
In spring 2017, a Düsseldorf lawyer filed an appeal 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 appeal against the German UPC legislation on formal grounds as the law approving the Unified Patent Court Treaty requires a qualified majority of two-thirds of the members of the Federal Parliament, as it interferes with the constitution. The Constitution precisely describes who is responsible for solving legal disputes, and the Federal Parliament could not simply change this with a normal law. This two-thirds majority was not reached as only few members of the Federal Parliament were present during the voting.
After this setback, a new law on ratification has been drafted in 2020 and has already been approved by the Bundesrat and the Bundestag (with two-thirds majority) on December 18, 2020.
However, two new appeals against the ratification of the Unified Patent Court Agreement were filed – also on December 18, 2020 – with the German Federal Constitutional Court. One appelant – the Düsseldorf lawyer – is already known from the earlier proceedings. The other one is currently unknown.
In July 2021, the Federal Constitutional Court now dismissed the two urgent applications against the Unified Patent Court on the grounds that the pending main proceedings were inadmissible because the complainants had not sufficiently substantiated the infringement of their fundamental rights. You can find the press release here: https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-057.html;jsessionid=A91682A9BD1B229454C5801B90186399.1_cid377.
The Unified Patent Court Act has now been ratified by the Federal President and is now in force since August 2021. In the meantime, the instrument of ratification of the Protocol to the Convention has also been deposited with the EU.
On December 02, 2021, Austria was the last necessary state to adopt the protocol to the Unified Patent Court and deposited the instrument of ratification on 18.01.2022. Subsequently, the court will now carry out the recruitment of judges, among other things, within the framework of the protocol phase.
Germany will trigger the start of the Unified Patent Court by formally depositing its instrument of ratification with the secretariat of the European Council, on the first day of the fourth month after the deposit (cf. article 89 of the UPCA). It is likely that the European Patent Court will not come into force until mid-2022 at the earliest.
Further information can be found on the EPO website: https://www.epo.org/news-events/news/2022/20220117_de.html.