Latest developments on the unitary patent system

Background

The efforts to create a unified patent system in Europe are now well advanced. The agreement on a unified European Patent Court has been coordinated at European level and is now available for ratification by the individual member states of the EU. In order for the agreement to enter into force successfully, it is necessary, among other things, for 13 states to ratify it, including France, the UK and Germany. To date, 16 states have ratified it, including France and the UK. Up until 20 July 2020, the situation was that the only thing missing was ratification in Germany, which was decided in the Bundestag, but against which a constitutional complaint was filed.

Status in Germany

In March 2020, the Federal Constitutional Court ruled that the sufficient quorum had not been reached for the decision in the Bundestag. The resolution passed by the Bundestag is therefore not valid. Instead, a new decision is necessary, which must be passed with a two-thirds majority. It is not currently possible to foresee when such a decision can be passed in the current COVID-19 crisis and under the influence of the approaching Bundestag elections next year.

Status in the UK

In April 2018, the UK government ratified the UPC Convention and notified the EU. The UK left the EU on 31 January 2020, and is therefore no longer a member of the EU. As the Unified Patent Court (UPC) Convention only provides for an effect in EU member states, the UPC can no longer have any effect in the UK. According to the present agreement, the central chamber is currently based in Paris, with London and Munich as secondary seats.

On 20 July 2020, the UK actively withdrew its ratification (see full details here).

Opinion of the EU Commission

From the EU Commission’s viewpoint, the ratification process is not affected by Brexit. As can be seen from the 15 July communication, the Commission considers it decisive that the UK was a member of the EU at the time of ratification. The communication also confirms that the UK will no longer participate in the single patent system when it leaves the EU. In relation to ratification, the Commission believes that a legally binding approval in the German Bundestag will bring the Convention into force.

The UK’s withdrawal of the ratification took place only after the communication of the EU Commission, meaning that no statement on this is currently available.

Open questions

It remains questionable whether the withdrawal of the UK ratification prior to the entry into force of the UPC has made it impossible to follow the path prescribed in the Convention. In this case, a possible solution would be for another EU member state to take the place of the UK. It remains to be seen whether this would happen automatically on the basis of the number of patent applications filed by the remaining member states, or whether an EU-wide vote would take place.

One thing that does appear to have been clarified is that a seat of the Central Chamber in London will probably be eliminated.

Visit our Brexit page for more information, or contact the article author, partner Andreas Wietzke, directly.