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German ratification of Unified Patent Court Agreement put on hold

Kluwer Patent blogger

January 13, 2021

The German ratification of the Unified Patent Court Agreement has been put on hold at the request of the German Federal Constitutional Court.

The FCC has confirmed this in answer to questions by Kluwer IP Law. The FCC has asked Bundespräsident Frank-Walter Steinmeier, to refrain from signing the bill into law, because two constitutional complaints were filed against ratification of the UPCA on 18 December 2020 (2 BvR 2216/20 and 2 BvR 2217/20), the day the Bundesrat completed the parliamentary ratification procedure by unanimously approving the bill.

A spokesperson for the Federal President has indicated he will indeed wait with signing the bill.

Unless the FCC throws out the complaints as inadmissible or manifestly unfounded in the short term, it means the ratification of the UPCA in Germany could be delayed severely once more. The first constitutional complaint against UPCA ratification in Germany was filed in March 2017. It took the FCC three years to decide on this complaint, and to partially uphold it, on formal grounds.

It is not unthinkable that due to new delay in Germany, combined with the departure of the UK from the EU and the Unitary Patent project, which has led to legal uncertainty and has made the UP and UPC less attractive for the industry, the new patent system will never see the light of day.

Comments (33)

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Kay

January 13, 2021 AT 1:32 PM

[...] with the departure of the UK from the EU and the Unitary Patent project, which [...] has made the UP and UPC less attractive for the industry Don't flatter the British. The attractivity lies in reducing the number of national parallel litigations, which will still happen with the UPC. The death of the UP is solely in the bad drafting and consequent pushing of legally doubtful contract past the democratic institutions, while at the same time providing these institutions with lies, false promises. Furthermore the problematic removal of democratic oversight for amending the contract.

Tim response to Kay

January 14, 2021 AT 3:57 PM

But most patents are not litigated. Of those that are, only some are litigated in multiple jurisdictions. Of those that are litigated in multiple jurisdictions, the litigation may be settled across multiple jurisdictions before reaching court in all of them. Those that reach court in multiple jurisdictions often have those jurisdictions spanning continents. You have to remember many EP patents are only validated in a few countries. Maybe only DE, or UK, FR, DE. That ought to be a real concern of the EU. For the vast majority of patent applicants (especially SMEs which the EU is supposed to be supportive of), the attraction of the UPC is the reduction in translations on grant which could be achieved via the London Agreement and/or advances in machine translations, and a single central renewal fee after grant payable to the EPO which the EPC states could agree. If the UPC package is too hard to swallow, then why doesn't Europe break it down into parts and swallow the easy bits first. Phasing out post grant translations is happening anyway and central renewal fee collection could be agreed. Neither of those things is controversial, neither raises constitutional questions. Both would be available to the EPC 38 rather than the EU27. I realise central litigation is sexy, but central and cheaper renewal fee payments would be of more practical benefit to many

Tom response to Tim

January 18, 2021 AT 7:48 AM

Why EPO needs three different languages? Only English is commonly spoken and understood in Europe. While giving up post grant translations, simultaneously official German and French EPO languages should be relinquished.

Peter Parker

January 13, 2021 AT 1:59 PM

What I find a bit outrageous independent of the details of the matter at hand is how easily the "will of the people" as expressed by 2/3 majorities in both chambers can be ignored and disregarded by what seems to be a murky gentleman's agreement. Why is there no preliminary injunction issued by the court preventing the Federal Presiding form sigining the bills? Then at least we know that it is really the intention of the senate and not perhaps just some clerk in the court or a single judge pretending to speak for the senate who made a phone call.

Kay response to Peter Parker

January 13, 2021 AT 5:37 PM

This is a discussion we already had. The GFCC does not issue injunctions except if really necessary. They are hesitant to interfere in the legislative power, thus they kindly ask to NOT sign, when there is a probable chance the complainant wins. If they would order to not sign, they would interfere in the legislative. Which would be beyond the official powers of the constitutional court . And to respect the separation of powers, the German Bundespräsident does not sign after such a request but awaits the outcome of the complaint.

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