Another delay to the Unified Patent Court?
22
Dec
2020
The German Federal Constitutional Court receives further challenges

On 18th December 2020 the German government approved the legislation required to ratify the Unified Patent Court Agreement. This allows the German government to trigger the arrival of the new European patent court and pan-European patent, which might now happen in 2021. However, since the legislation was approved, we hear that the German Federal Constitutional Court has received two new constitutional complaints. The last such complaint delayed the new system by several years, but it is currently not clear whether the new complaints will cause a similar length of delay.

The new system provides both the Unified Patent Court (UPC) and the Unitary Patent (UP). UPs would be a new option for the fate of an application granted by the European Patent Office (EPO) following prosecution as at present. The UPC is planned to be a new system for litigating UPs and some conventional EPO patents in Europe. A UP would have unitary effect across all participating member states. The UPC would have exclusive jurisdiction over UPs and, eventually, all EPs granted by the EPO, potentially including those already granted (subject to transitional provisions). The UPC’s rulings would be enforceable across all of the participating member states. More information on the new system can be found on our website here.

The arrival of the new system was previously delayed by a long running court battle in Germany, where ultimately the German Federal Constitutional Court largely dismissed a constitutional complaint against the UPC Agreement. The only reason the complaint was upheld relates to a voting formality and that issue has now been addressed by the new legislative process completed on 18th December 2020.  Other delays were caused by the UK’s decision to leave this new system, which means at some point the participating member states may need to reallocate some of the UK’s UPC responsibilities, in particular choosing a state to host the Central Division for life science disputes. The German government’s consultation document suggests these amendments could be made once the new system is up and running, with references to the UK in the existing agreement simply being struck through in the meantime. While the UK government has stated that it will not be seeking involvement in the UP/UPC system, this will not impact the current European patent system: patent applications filed at the EPO will still cover the UK and will be litigated in the UK national courts as usual.

We now wait with interest to see whether these two new constitutional complaints affect the possible timing for the arrival of the UPC system.  Regardless of how the UP and UPC project develops there are no implications for the current European patent system run by the EPO, which is unconnected to the EU. We are looking forward to offering clients the chance to both obtain UPs using the existing EPO procedure and enforce their patents across Europe using the UPC when the system is finally up and running.