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German Constitutional Court deals blow to Unified Patent Court

On Friday 20 March 2020 the German Federal Constitutional Court dealt a blow to the Unified Patent Court (UPC), issuing a decision to uphold a constitutional complaint lodged against the German ratification of the UPC agreement.

The complainant (a German patent attorney), had argued that the ratification of the UPC agreement was contrary to the German constitution on the grounds that: 

  1. it involved a transfer of sovereign power from the German courts to an external body and 
  2. a two thirds majority of the German parliament was therefore required for this to happen.

These grounds of complaint were upheld and there is no appeal procedure available at the German Federal Constitutional Court. Accordingly, the German ratification is without effect.

Where next for the UPC project?

The UPC is a proposed common Patent Court intended to provide judgments regarding the infringement and validity of European patents, in the states that ratify the UPC. Importantly, each judgement would have the same direct effect in every participating European state, thereby enabling pan-European litigation and avoiding the need to take action individually in each state. The proposed accompanying Unitary Patent is a single patent which will have direct effect across the participating states and which can be litigated in the UPC.

In order to come into effect, the UPC Agreement needed to be ratified also by Germany. It is possible that this could still happen if the legislation is resubmitted to the German Parliament and the required majority is reached. However, this is unlikely to be a political priority given the coronavirus crisis facing Europe.

In addition, the UK's exit from the EU and its subsequent political decision that it does not wish to be bound by the Court of Justice of the EU has put into doubt the UK's ability to take part in the UPC project. The UK was a core state within the UPC framework, hosting one of the Central Divisions of the UPC Court, and this would have to be renegotiated by the remaining member states. At the very least, therefore, the project is likely to be delayed for several years once a decision is made to seek to resurrect the project.

Where next for patent litigation?

Fortunately, there are some silver linings to the UPC cloud.

First, the European patent application system is unaffected by Brexit and is working well. It enables a single application covering 38 member states of the EPC to be filed (in English) based on a PCT application, a priority application or as a first filing. Williams Powell has qualified European patent attorneys in a range of technical areas and is highly experienced at prosecution and oppositions.We file fixed cost European patent applications.

Secondly, patent litigation in the UK goes from strength to strength, with a number of options tailored to commercial needs, including the Patent Court (part of the High Court), the Intellectual Property Enterprise Court, and various shorter and flexible trial schemes (see our introduction to litigation here).

Williams Powell is unusually well-placed to handle patent prosecution and litigation, with a number of highly experienced litigators and one of the first Patent Attorney Advocates (with the right to conduct litigation and the right of audience in the Higher Courts including the Court of Appeal and the Supreme Court). Indeed, we are presently handling three patent cases in the High Court and IPEC and one trademark case before the IPEC. With a wealth of prosecution and litigation expertise, we are ready to help protect your intellectual property, from inception through to enforcement. 

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