UPC Future Uncertain Amid News from Germany and UK

On March 20, 2020, the German Federal Constitutional Court issued a long-awaited decision upholding the German patent attorney Dr. Ingve Stjerna’s complaint against Germany’s ratification of the Unified Patent Court Agreement (UPCA) claiming that the ratification would be unconstitutional.

In June 2017, the German Federal Constitutional Court asked the German president not to sign the legislation implementing the Unified Patent Court (UPC) and unitary patent because of the German attorney’s complaint. After nearly three years, the court finally issued a decision stating that the German act by which it was to accede to the UPCA violated the German populace’s constitutional rights, because it was not passed with the parliamentary majority required by the German legislation.

Although this decision represents a considerable setback for the implementation of the UPC, it could be overcome by a two-thirds majority vote in the parliament. In a press release issued on March 26, Germany’s Minister of Justice and Consumer Protection Christine Lambrecht said that she will work to ensure that the UPC project moves forward.

Moreover, on February 27, 2020, the United Kingdom published a document setting out its negotiation objectives and approach to its future relationship with the EU. The UK announced that the country would not agree to any obligations to align its laws with the EU’s, or for the EU’s institutions, including the Court of Justice of the European Union (CJEU). Because the UPCA requires UPC participating states to respect the jurisdiction of the CJEU and the primary of EU law, it has become clear that the UK will not seek to participate in the UPC system, despite previous hopes to the contrary even after the Brexit vote.

The UPCA was signed in Brussels on February 19, 2013. The UPC is intended to be a court common to the contracting states and thus part of their judicial system, with exclusive competence with regard to European patents and patents with unitary effect.

Initially, the UPCA was to enter into force on the first day of the fourth month after France, Germany, the UK and at least 10 other EU member states have deposited their instrument of ratification with the EU Council. While France ratified the Agreement back in 2014, the recent news from Germany and the UK further delay and bring uncertainty to the implementation of the UPCA.

By: Nada Herak

For more information, please contact Nada Herak at our Serbia office.