Further constitutional complaints against the German Unified Patent Court legislation

After two more constitutional complaints have been submitted to the Federal Constitutional Court (BVerfG) at the turn of the year 2020/21 (Ref .: 2 BvR 2216/20 and 2 BvR 2217/20), the BVerfG asked Federal President Frank-Walter Steinmeier to wait with the execution of the law.

In a second attempt the Bundestag passed the unamended draft bill for the Unified Patent Court with a two-thirds majority at the end of November 2020, and in December 2020 the Bundesrat also approved this law with the required two-thirds majority.

The Unified Patent Court (UPC) as an international organization based in Luxemburg consists of a Court of First Instance, a Court of Appeal and a common Registry. The Court of First Instance comprises a central chamber as well as local and regional chambers. In Germany, a section of the central chamber is established in Munich and one local chamber each in Düsseldorf, Hamburg, Mannheim, and Munich.

Already in 2017 the Bundestag had approved the Agreement (“the Act of Approval”) on a Unified Patent Court (EPGÜ-ZustG) with a simple majority. A constitutional complaint was filed against the Act of Approval, whereupon in February 2020 the BVerfG declared the ratification law null and void due to formal deficiencies, as the law was not passed with a majority of two-thirds in both the Bundestag and the Bundesrat (Ref.: 2 BvR 739/17). This had necessitated a new vote on the Act of Approval.

The European Parliament had already passed the EU unitary patent in December 2012, and it was a long and arduous road until it finally seemed within reach. All what was missing for it to enter into force was the countersignature of the Federal Government, the execution by the Federal President and publication in the Federal Law Gazette. Until now, it was assumed that ratification could be completed by the end of 2021. According to the EU Commission, it could therefore have been expected that the “period of provisional application” of the unitary patent could begin in 2021., The new system was supposed to be fully operational as of  2022. Now, a further delay of the procedure seems unavoidable.

Furthermore, it still remains to be seen how the Brexit and also the revocation of the EPC ratification by the UK will affect the establishment of the Unified Patent Court. A new location for the section of the Central Division which originally should be located in London has to be found and as consequence it will probably be necessary to adjust the Agreement. Italy is considering Milan as a possible location for the section of the Central Division. The section of the Central Division for patent litigation which was planned in London is responsible for the important areas of human necessities, chemistry and metallurgy. Temporarily, the two remaining units in Paris and Munich will take over these tasks.

Outlook

The further course of the still pending ratification of the law by the Federal President seems uncertain at present. However, if the Unified Patent Court is launched as planned, the transitional provision under Art. 83 UPCA must be observed, according to which actions for infringement or for a declaration of invalidity of a “classical” European patent can be brought either before the Unified Patent Court or before the national courts.

The applicant or proprietor of a European patent may exclude the jurisdiction of the Unified Patent Court by declaration according to Art. 83(3) UPCA (so-called opt-out). For further information, please contact us here.

 

Dr. Petra Westphal