Unified Patent Court unconstitutional says top German court

Unified Patent Court unconstitutional says top German court

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Once upon a time, back in 2006, a number of senior European patent judges met in Venice to mull over the woes of the European patent litigation system. These included the need to litigate separately in each European country, conflicting patent judgments in different countries, forum shopping, torpedoes and other procedural tricks, and a multijurisdictional patent litigation industry leading to sky-high costs and business uncertainties.

A unified patent court

A dream emerged from the Venice meeting of a single European patent court system with a single court of appeal that would harmonise and streamline patent litigation in Europe, going beyond the EU to include other European Patent Convention countries such as Switzerland. And despite much adversity the dream refused to die, culminating in 2013 when 24 EU Member States signed up to the Unified Patent Court Agreement, which was now limited to the EU. By summer 2016 the new court was on the verge of opening for business; premises were being acquired; judges were being trained, patent lawyers everywhere were indulging in mock trials with their European colleagues in an attempt to familiarise themselves with the new rules. 


Then came the vote for Brexit, putting the UK’s participation in doubt, followed, in the summer of 2017, by a constitutional challenge in Germany. Suddenly, the future of the new court was in serious doubt. More recently, the UK Government has confirmed that the UK will not be seeking participation in the UPC. Finally, on March 20th this year the news came through that the German constitutional challenge has been upheld. 

Is this the end?

According to reports, it appears that the constitutional objection in Germany could be resolved by a vote in the German Bundestag (Parliament) ratifying the UPC agreement with a two-thirds majority, so in principle this looks fixable.  The UK’s departure may require a renegotiation of the UPC agreement by the remaining participating states. So in theory, it may still be possible to save the project, and the Preparatory Committee for the proposed court is continuing to work to this end whilst the way forward is analysed.  Realistically, however, there must be serious doubt about whether the political will to do so now exists.

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