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Partial Red Light For UPC from German Court

20 March 2020

The German Constitutional Court today partially upheld the complaint by Ingve Stjerna that the UPC (Unified Patent Court) is unconstitutional in Germany. The Court ruled that the failure of the Bundestag to secure a two-thirds majority of all Members for the UPC legislation, a matter concerning constitutional change, was unlawful. This will undoubtedly further delay the UPC project. The Court did, however, rule that the other matters raised in the complaint were inadmissible. This is a positive indication that the Court is not minded to entertain the notion that UPC is unconstitutional per se. 


The Unified Patent Court would allow companies and inventors to protect their inventions in at least 17 European countries in a single court action should the system be implemented. The court coming into operation would complete the so called “Unitary Patent Package” which would also allow for a single Unitary Patent that would simplify the patent granting process in Europe.


For the last two years, the entire UPC project has been the legal equivalent of Schroedinger’s cat. The Stjerna complaint had been filed at the court before the German President was able to sign the German ratification into law, effectively suspending the whole project, as Germany was one of three mandatory countries required to ratify the UPC legislation before the project could proceed. Now the box has been opened to reveal another box inside and the UPC cat, rather than being declared alive or dead, continues with its seemingly unknowable state.


It is too early to make any predictions about what happens from here. Although the upheld complaint is technical rather than fundamental in nature, it may prove difficult for the German government to secure the required two-thirds majority of all members, especially with the Coronavirus pandemic acting as a brake on all legislatures at the moment. Added to that are possible difficulties posed by the UK’s position re. the Court post-Brexit. The current Agreement envisions a significant role for the UK as the location of one of the three central divisions of the Court. However, the Johnson government has adopted a negative stance in its Brexit negotiations in relation to all areas which have even peripheral involvement of the CJEU and UPC is one such area. This is despite the UPC Agreement having been ratified by the previous government under Theresa May.


While the Unitary Patent project enjoys the overwhelming support of industry and the patent legal profession, the project is travelling against strong headwinds at the moment. It remains to be seen whether this latest event is just another bump on the long road to a successful conclusion or one of the last few straws on an overladen camel’s back.


Dave Croston
Advanced Engineering group