Posted on 22/1/2021

Another delay for the UPC?

The Unitary Patent Court legislation has finally been approved, but is there another delay?

On 18 December 2020, the Bundesrat (German Federal Council) approved an amended version of the legislation necessary to bring into force the long-awaited Unitary Patent Court (UPC). This followed the previous ruling of the Bundesverfassungsgericht (German Federal Constitutional Court), which upheld a complaint against the legislation implementing the UPC. The previous complaint against the legislation, and its upholding by the Bundesverfassungsgericht is detailed here.

With the Bundesrat approving the legislation, it appeared the UPC could finally be coming to fruition. However, two new complaints have been filed with the Bundesverfassungsgericht. The previous complainant had indicated that they would continue to object to the approval of the legislation, though at this time the identity of the complainants is unknown.

These complaints will likely cause another lengthy delay in the process, assuming that the Bundesverfassungsgericht will again ask the German government to defer signing the legislation into law until the complaints have been properly reviewed and dealt with.

If the Bundesverfassungsgericht find the complaint to be valid, then the future of the UPC could be put in doubt. However, if the complaints are dismissed, the it appears the UPC may finally come into existence within the next couple of years.

This caps off what has been a tumultuous year for the UPC, given the UK’s exit from the EU meaning one of the key players in the establishment of the UPC can no longer participate in the system. It remains to be seen what will happen with the proposed division of UPC which was originally destined to be based in London.

There is a push from the Italian government, to move this division to Milan, as Italy is the state which is ‘replacing’ the UK in some formal respects regarding the implementation of the UPC. It is also possible that the responsibilities of the London division will instead be split between the UPC divisions in Paris and Munich.

It may be several months before the Bundesverfassungsgericht provide a ruling on this matter. We shall keep you updated of any developments.

If you have any questions about the UPC, or patents and intellectual property in general, please contact us.

Wilson Gunn