Recent constitutional challenges raised in Germany have cast doubt once again on the anticipated time-frame for the implementation of the new Unified Patent Court (UPC) in Europe.
The UPC is a new patent enforcement forum, which is intended to create a streamlined procedure for the litigation of patents granted by the European Patent Office through a single court system. The UPC will have jurisdiction over all European patents and new unitary patents (UPs) designated to those participating EU Member States that have ratified the UPC Agreement.
For the UPC system to take effect, at least 13 EU countries must pass national legislation to ratify the UPC Agreement. Of these 13 countries, it was initially required that France, Germany and the UK in particular ratified the UPC Agreement in order to give effect to the new system, which was initially achieved.
Obstacles to implementation
However, a constitutional law challenge in Germany resulted in its prior ratification being deemed void which, together with Brexit in the UK, cast doubt on the future of the UPC and the new unitary patent regime. In early 2020, the UK confirmed that it would no longer seek to be involved in the UPC/UP scheme.
In December 2020, the key barrier to the scheme’s operation was removed when the German federal parliament approved the legislation necessary for enabling the UPC system to become operational. While this did not signify an immediate start for the UPC, it was hoped that overcoming this legislative obstacle would provide the final stimulus required to deliver the new court system.
However, in latest news, further constitutional challenges have now been raised in the German Federal Constitutional Court against the draft legislation that would enable German ratification of the UPC Agreement. It remains to be seen how the German court will decide on this matter, and how severe the impact of the consequent delays will be for the implementation of the UPC project.