14 January 2021
At the end of 2020 the German parliament passed (for the second time) the legislation necessary for Germany to ratify the Unified Patent Court Agreement (UPCA). This followed a ruling earlier in 2020 from the Federal Constitutional Court which nullified the first attempt to implement this legislation due to failure to meet a parliamentary majority of two-thirds as required under the German constitution.
Following the second attempt at enacting the relevant law, it has now been reported that two new complaints relating to the UPCA have been filed with the Federal Constitutional Court. Once again, the court has asked the German President not to bring the legislation into force while these complaints are reviewed. Few details are available regarding the new complaints so far, although it is understood that one of them has been filed by the same party who was behind the previous, successful complaint. It is also understood that a preliminary injunction has been sought by one of the complainants to formally prevent the German government from ratifying the UPCA pending the Constitutional Court’s final decision.
If it comes into force, the UPCA will create a common court system for patent litigation in the participating countries, along with a single patent covering those countries. The project has been beset by repeated delays over the years, and the UPCA cannot enter into force without German ratification. The new constitutional complaints are therefore likely to create further delays. A timescale is not yet foreseeable with any certainty, although the previous constitutional complaint took approximately three years to resolve.
More details will be reported if and when these become available.
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