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German Constitutional Court Unexpectedly Bars the Implementation of the Unified Patent Court

27th June, 2017

Patent professionals have already been in much anxiety about the much awaited Unified Patent Court.  Many factors had contributed for this expectation in the past: The BREXIT itself, then the beginning of the negotiations between Britain and the EU on Article 50 of the TEU, the legal procedures making these negotiations further complicated, and finally the rather turbulent snap election called by the British Prime Minister in June 2017.

Now, while one might have expected that the sole thorn in the flesh of the UPC would be the United Kingdom, Germany now surprisingly appears as a bar to the implementation of the Court and the Unified Patent system as a whole. Indeed, all that was necessary for the UPC Agreement to be ratified was signature by the President of Germany of the corresponding ratification bill after it successfully passed both houses of the German parliament. However, in the last minute the Federal Supreme Court of Germany has expressly requested the German President not to sign the bill, since the matter is now under judicial scrutiny of that Court. This has been recently covered by the German mainstream newspaper “F.A.Z.”.

The background: A “constitutional complaint” (Verfassungsbeschwerde, case no. Az. 2 BvR 739/17) has been filed before the Court by a yet unknown private person, stating that the UPC regulations are unconstitutional. So far, the Court has not yet issued an official statement, nonetheless the complaint has not been formally rejected either – this is clearly suggested by the fact that the German President was now asked not to sign the ratification bill. Thus, it is expected that the Court itself will have to draw its conclusions as to whether the UPC Agreement infringes the German constitution or not.

There is much speculation as to what might be the grounds of the complaint that triggered this sudden and unexpected move by the Federal Supreme Court of Germany. If one searches for news on the subject, the results show various observers from the IP field have put together their two penniess worth on the subject – some arguing that there might be enough grounds to determine the UPC to be unconstitutional, others clearly stating that there is no infringement at all.

A common assumption is that this particular complaint is connected to four other constitutional complaints filed in the past (under case no. 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 756/16 and 2 BvR 786/16). These complaints, in general, criticise the current structure of the European Patent Office, in that it does not have an independent appellate instance (as the Boards of Appeal are an integral part of the EPO itself and its own hierarchy). Considering that Unitary Patents are to be issued by the EPO, this could be a possible explanation for the sudden halt dictated by the highest German Court. Nonetheless, it is momentarily recommended to await an official statement from the Federal Supreme Court on this matter, in order to eliminate all possible speculation.

One thing remains certain, though: These events constitute a huge setback for the implementation of the UPC and the Unitary Patent System in Europe. Although the Constitutional Court is expected to render a decision on the four other complaints of this year, mentioned above, this single complaint might demand even more time to be deliberated upon. At this point, the BREXIT seems to have faded from the spotlight in the UPC’s struggle to come into being.

Nikolaus B. WappmannsbergerDr. Alexander Wyrwoll, President - Communications Commission

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