European Unitary Patent and Unified Court
The agreement on the unitary patent should have been ratified in Germany by the end of 2020.
New constitutional challenges delay introduction of unitary patent
In its decision of March 2020, the Federal Constitutional Court (Bundesverfassungsgericht) had declared the first consent law, which was passed in March 2017, null and void due to a constitutional complaint. The two-thirds majority required to pass the law had not been achieved.
The new law approving the Agreement on a Unified Patent Court (UPC) was passed in November 2020 with the required two-thirds majority. Immediately thereafter, two further constitutional complaints were filed, which will now again delay the introduction of the unitary patent.
The idea of a unitary European patent system
The idea is to unify or bundle the maintenance and enforcement of patents in the European Community (EU) (European patent with unitary effect). Currently, European patents are maintained for each state of the EU by separate fees and infringement as well as nullity actions must also be filed separately in each state.
In particular, a unified court system is also to be created that can rule jointly for European patents with uniform effect with regard to alleged acts of infringement in several EU states. The prerequisite is the establishment of the Unified Patent Court (UPC).
Since decision-making powers of national offices and courts have to be transferred to the EU, this system requires the consent of the EU member states. Due to the lack of approval from Germany until recently, this EU project continues to be delayed.
An uncertain future
For decades, the drivers of this idea were Germany, France and the United Kingdom. After various resistance from individual EU member states, the time finally came in 2017 for the system to be introduced by the EU member states, the necessary buildings to be set up, courses to train lawyers and judges to be launched. Everything was just waiting for ratification in Germany, which was to take place as agreed when all the facilities were operational. But then came the first constitutional complaint in Germany and then Brexit.
The United Kingdom had withdrawn its ratification in July 2020 in the context of Brexit. Whether this withdrawal is sufficient for the legally compliant withdrawal from the UPC has not yet been finally decided. The departure of the United Kingdom, which was assigned great importance and responsibility in the context of this unitary European patent system, has resulted in many questions and gaps and thus great uncertainty regarding the future of this idea. For example, it must now be renegotiated which EU member state may now stand in for the courts, offices and other institutions already provided for in the UK.
With the renewed postponement of the ratification of the treaty by Germany, the remaining EU member states will in any case have sufficient time to reorganize and distribute the competences and institutions of the system that have become vacant as a result of Brexit. Italy and the Netherlands in particular lend themselves to this.
Regarding Matthias Rößler:
Matthias Rößler, German and European Patent Attorney since 2003, studied mechanical engineering at the RWTH Aachen. He is co-founding partner of karo IP. A main focus of his practice is the management of large patent portfolios and the enforcement of bilateral litigation proceedings before patent offices and patent courts. His additional qualification as Master of Laws (LL.M.) qualifies him especially for multinational infringement matters in Europe.