German Constitutional Court Provides a Green Light for the UPC to Proceed

In a decision issued earlier today, the German constitutional court (Bundesverfassungsgericht) rejected applications for injunctions to prevent Germany ratifying the Unified Patent Court agreement, clearing the way for the agreement and with it the Unitary Patent to come into force.

The gestation of the Unified Patent Court has been a difficult one. In March 2020, the Bundesverfassungsgericht upheld a previous constitutional complaint that the manner in which the agreement had been approved by the German parliament was unconstitutional. The German parliament corrected that informality but ratification of the agreement has then been further delayed by a further round of constitutional complaints. It is this second round of complaints, this time concerning the manner in which judges would be appointed to the court, which have now been rejected by the Bundesverfassungsgericht finally permitting Germany to ratify the Unified Patent Court agreement which will enable the agreement to come into force.

The exact timing when the Unified Patent Court will come into existence will be triggered by the formal ratification of the agreement by Germany. When exactly that will be is, at present, unclear. A major hurdle to be overcome will be the recruitment and training of judges which is likely to take a number of months. However, when that is completed, the Unified Patent Court will provide a forum for litigating multijurisdictional patent disputes in Europe.

Not all European countries will be participating in the new Court. Both Spain and Poland have previously announced that they would not be joining the agreement and the United Kingdom withdrew its ratification of the agreement following the UK’s departure from the European Union.

The Unified Patent Court will, however, still have jurisdiction over much of Europe and will provide a means for enforcement of patent rights across Germany, France, Italy, Netherlands, Belgium, Bulgaria, Denmark, Estonia, Latvia, Luxembourg, Austria, Finland and Sweden, all of which have now ratified the agreement. Further European member states are expected to ratify the agreement in the coming months.

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