Unified Patent Court – current status
The biggest change to European patent law in a generation rests on the fate of two German constitutional 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 a new European patent court and a new pan-European patent. However, since the legislation was approved, the German Constitutional Court has received two new constitutional complaints in relation to the legality of the Agreement under German national law. The last such complaint delayed the new system by several years. As before, the German president is waiting for news from the Constitutional Court before signing the required legislation into law. So the new complaints may cause a significant delay to the project, or they might otherwise be handled quickly enabling the new system to come into force in around 2022.

The new system is made up of the Unified Patent Court (UPC) and the Unitary Patent (UP). UPs would be a new option for the fate of a patent application granted by the European Patent Office (EPO) following examination under the current system. A UP would have unitary effect across all participating member states, providing coverage for ultimately 24 countries via a single unitary right. The UPC would have exclusive jurisdiction over UPs and all EPs granted by the EPO, 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 new constitutional challenges relate to a wide range of procedural and legal issues, and may take considerable time for the German Constitutional Court to hear in full.  Indeed, the cases are not listed for a decision in 2021. However, one option being discussed by some commentators is that the Court might take an early decision on whether it is right to completely halt the legislative process in Germany, or whether the legislation might be approved by the German president while the Court considers the challenge in more detail. This means there might be an initial decision on this preliminary point in the first half of 2021, such that the UPC might still open its doors in 2022, or we may have to wait for a full ruling several years from now.

The arrival of the new system was previously delayed by a long running court battle in Germany, where ultimately the German Constitutional Court largely dismissed an earlier 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 the participating member states will need to reallocate the UK’s UPC responsibilities. In September 2020, the UPC preparatory committee decided that the work of the (formerly UK-based) Central Division for life sciences disputes would be split initially between the Central Divisions in Munich and Paris. However, the new permanent home for the Central Division for life sciences disputes has not yet been decided. 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 national UK patents courts as usual.

We now wait with interest to see how long these two new constitutional complaints delay 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 entirely separate from the EU and so unaffected by either the UPC or Brexit. 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 up and running.