Federal Constitutional Court clears the way for the UPC

Following delays throughout 2020 (see previous article here), on Friday 9 July 2021, the Federal Constitutional Court ruled on two urgent applications against the ratification of the Unified Patent Court (UPC). In both cases (2 BvR 2216/20 and 2 BvR 2217/20), the petitions were rejected as inadmissible, as – in the court’s view – there was insufficient substantiation.

Thus, the path is finally clear for Germany to ratify the UPC, creating a common court system for patent litigation across European Union member states.

Next steps

There is now hope that ratification can be completed in Germany before the federal elections in September 2021. Directly after that, the ‘Provisional Application Period’ will begin, during which time the UPC will be equipped. For the upcoming tasks, such as the recruitment of judges and the staffing of the administration, a period of at least eight months is initially planned, which can be extended, if required.

The realistic target for the start of the UPC system is likely to be 1 January 2023. Until then, among other things, it must be clarified in which member state the headquarters of the pharmaceutical division of the UPC – which, prior to Brexit, was originally planned to be based in London – will be located. At present, Italy is the most likely option, since it has joined the group of three strongest users following the UK’s withdrawal from the UPC. It can therefore be assumed that the pharmaceutical division will be based in Milan.

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