Posted on 14/11/2019

Delay to German ratification of the UPC continues

An update on the German ratification of the UPC.

The German Federal Government has cast more uncertainty over its timescale for ratifying the Unified Patent Court Agreement with its response to a brief Parliamentary inquiry dated 31 July 2019.

The proposed UPC will be a new court covering all members of the EU who have ratified the UPC Agreement and will hear infringement and revocation proceedings of European Patents (including European patents with unitary effect throughout the EU). When in operation, granted European Patents (unless opted out) will be subject to the jurisdiction of the UPC as well as the relevant national court. This means that European Patents may be enforced in a single action across all member states that have ratified the UPC Agreement and where the patent is in force, or be revoked in a single action brought before the UPC central division.

Before the UPC can come int to effect, the UPC Agreement must be ratified by the German Federal Government. This has been delayed by a pending constitutional complaint which was set to be heard and placed on the annual list of cases in 2019. However, the answer from the German Ministry of Justice to the brief inquiry appears to be an indirect confirmation of a further delay to the ratification.

Most notably, the German Federal Government acknowledges that the consequences of the United Kingdom leaving the European Union play an important part in the further implementation of the UPC. The Federal Government’s opinion on the real and legal implications of this is not finalised, not least because many significant factors of Brexit are still unknown.  Although, the current Federal Government did reassert its commitment to the unitary patent and pointed to its allocation of at least €4.3 million in the budget plan 2020 as proof of this.

In conclusion, the outcome of the constitutional complaint still remains uncertain, and the Federal Constitutional Court has asked the German President to suspend signing the ratification bill until a decision has been reached. Meanwhile, it is likely that the continued uncertainty regarding Brexit will lead to further delay in the UPC Agreement entering into force, whatever of the outcome of the complaint.

If you have any questions regarding the UPC or what it may mean for you, please get in touch to speak to one of our attorneys.

Wilson Gunn