The arrival of the Unitary Patent (UP) and the Unified Patent Court (UPC) could be delayed following a request from the German Federal Constitutional Court to the German Federal President to hold off on signing the instruments of ratification of the UPC Agreement until a constitutional challenge has been dealt with.
Many European countries have already ratified the UPC Agreement but the UP/UPC system cannot get up and running until both Germany and the UK ratify it.
The German parliament has already passed the relevant legislation, but it will not come into force until it has received the signature of the President. The UK is expected to ratify the UPC Agreement soon, although exact timings are unclear, particularly following the recent general election.
The request to delay ratification was made by the German Federal Constitutional Court on 3rd April 2017 following a challenge by an unnamed private individual regarding the constitutionality of the legislation enabling the ratification of the UPC Agreement. The grounds of the challenge have not yet been published. However, it is believed that the German Federal Constitutional Court would have made the request to the President only if the challenge could not be found to be totally without merit from the outset. Having said that, the Court has reportedly not yet entered into a detailed assessment of the merits of the challenge.
It is not yet clear whether the challenge will amount to a major stumbling block for German ratification of the UPC Agreement. In view of the political will for the UP/UPC system to go ahead it is likely that the German courts will endeavour to find a way to allow Germany to ratify the UPC Agreement. If the constitutional cases are dealt with quickly, the request from the German Federal Constitutional Court may not cause a significant delay to the start date of the UP/UPC system. Taking into account this latest development with those that have occurred in the UK in recent months, we do not believe that the new UP/UPC system will begin before April 2018.