A Unified Patent Court (UPC) in Europe has been a dream for many. The ratification of the Unified Patent Court Agreement (UPCA) appeared to be bringing this dream close to reality in Germany after the approval of the ratification bill on November 26, 2020[1]. (click here to read the background). However, it now appears that the UPC may continue to be a dream for a little while longer now. It is reported that two other complaints (2 BvR 2216/20 and 2 BvR 2217/20) against the UPC legislation have been filed before the Federal Constitutional Court of Germany. This means that the decision to ratify the UPC legislation by Germany, which was decided by the court last year, is yet again in question. Germany is one of the three countries to have mandatorily signed the UPCA to bring the Unified Patent Court in effect.
To ratify the UPCA, it is a constitutional requirement that both the Chambers of the German Parliament i.e. Bundestag and Bundesrat must approve the international agreements with two-thirds majority.
On November 27, 2020, the UPC agreement was approved by 570 members of Bundestag out of 709, thereby satisfying the requirement of the approval from more than the two thirds of all the 709 Bundestag members for a transfer of sovereign rights. The ratified bill was then submitted to the Federal Council (Bundesrat) for approval. This however does not complete the ratification procedure.; In order for the UPCA to be fully ratified by Germany, the bill is yet to clear the judicial hurdle and also recieve the President’s assent to enter into force. It is however already expected that another complaint against the ratification may be filed.
Another Complaint, Further Delay?
In the weeks-long window between the approval and the President’s assent, German UPCA Legislation has been challenged again. The Federal Constitution Court has yet again received two complaints against the ratification of the agreement. This could add another chapter of delay in the UPCA’s execution. At the moment, it is not clear whether the Federal Constitutional Court will accept the filings or not.
Germany’s ratification is not the only challenge to the UPC system, UK’s withdrawal from the UPCA has made the selection process of the UPC’s judges slightly more difficult and has spawned several questions regarding UK’s responsibilities to the UPC system.
Germany’s failure to ratifiy the Unified Patent Court Agreement will contribute to the slowing of the execution of the UPC and a unitary patent system as envisioned so far. However, if the Federal Constitutional Court dismisses the complaints then after the Provisional Application Period in 2021, the Unified Patent Court can finally start by 2022. That said, the question here is how it will move forward.
The path of unification is full of hurdles and challenges. Because of the first complaint, the approval by the German Parliament became necessary. If the cases aren’t dismissed, then these cases will take a considerable time to be decided which will inevitably lead to the delay of the UPC dream.
For now, we’ll have to wait and watch if these constitutional complaints will affectGermany’s ratification of the UPCA.
[1] https://www.epo.org/news-events/news/2020/20201126b.html
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