Earlier this year, the United Kingdom (UK) decided to not participate in the Unified Patent Court (UPC) system. As of this morning, it appears Germany may follow in UK’s footsteps.
In June 2017, the German constitutional court (Bundesverfassungsgericht) asked the German legislator to not put the implementing legislation for the UPC and Unitary Patent into force. The complaint, which was brought forward by a German attorney, highlighted that the manner in which German Parliament had approved UPC violated the German constitution.
After almost three years, the German constitutional court at last made a decision. An official press release was published by the Bundesverfassungsgericht this morning, holding that the Act of Approval to the Agreement on the UPC is void. A majority of the judges of the Court were of the view that the German basic law required that the act establishing the Court needed to be passed by a two-thirds majority in the German parliament as it would grant a supra-national court jurisdiction over matters which would otherwise be dealt with in the German courts. The decision was clearly finely balanced with some members of the court issuing dissenting opinions.
Although the decision is narrowly based, it is likely that this decision will be the final death blow for the proposed Unified Patent Court.
Previously, in 2018, the Hungarian constitutional court ruled that Hungarian participation in the UPC would require a constitutional amendment as it would involve a transfer of sovereignty from the national courts to a supra-national court.
Now with the UK having decided to not participate in the UPC, the German courts upholding the complaint against German ratification of the UPC agreement, the ruling of the Hungarian court not allowing Hungary to ratify the UPC, and Poland and Spain refusing to sign the UPC agreement, it is highly unlikely that the UPC will enter into force.
The UPC had promised to provide a forum for rationalizing patent litigation in Europe as it provided a means by which patent disputes across Europe could be resolved in a single court action. Given the difficulties that the UPC now faces, the existing litigation system in which patentees must bring separate court actions in each jurisdiction looks set to continue for the foreseeable future.
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