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Institute of Professional Representatives before the European Patent Office
 

German Federal Constitutional Court Stops Ratification of Germany by Allowing Complaint in UPC Case

March 20, 2020

This morning the German Federal Constitutional Court (“Bundesverfassungsgericht”) issued a long-awaited judgment on a complaint filed against the German legislation implementing the Unified Patent Court (UPC) Agreement.

The new pan-European Unified Patent Court would have jurisdiction on patent infringement and validity litigation regarding all Unitary Patents and also on existing and future classical European patents (during transitional period, national Courts could still also have jurisdiction) in the participating member states. The Unitary patent will, once validated from a European Patent, be a single patent title for the whole territory of the participating member states.

The legislation to allow implementation of the UPC Agreement had already passed both houses of the German Parliament (“Bundestag” and “Bundesrat”). However, in 2017, upon the suggestion of the Federal Constitutional Court, the German Federal President (“Bundespräsident”) suspended signing of the implementing legislation. Ratification by Germany would complete the necessary numbers of countries to bring the UPC Agreement and the Unitary Patent package into force. This has significantly delayed the UPC Agreement and the Unitary Patent coming into force for all interested participating countries.

The Federal Constitutional Court decided on 13 February 2020 that the complaint is admissible and well founded to the extent that it alleges an infringement of the requirement of a qualified majority for the implementing legislation under the German Constitution. Hence, the complaint succeeded because the implementing legislation was not adopted with the required consent of two thirds of the members of the Bundestag.

The Federal Constitutional Court found the further grounds for the complaint inadmissible.

The decision was taken with a 5:3 majority of the Senate. Three judges expressed a dissenting opinion.

This means yet a further delay before the UPC Agreement and the Unitary Patent may enter into force.

An English summary of the court’s reasoning will be provided by the epi in due course.

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