Tribal warfare and red-soled heels: 10 big issues in 2018
UPC: still no clarity in sight
We have asked the question many times before: will the Unified Patent Court (UPC) ever be implemented?
The latest holdup is a German constitutional complaint against the UPC. Filed last year, the complaint raised several concerns, including the independence of the UPC’s judiciary. It also argued that the German UPC ratification law amends or supplements the Constitution, which would require a majority of two thirds of the Bundestag (parliament) to pass it. However, the law was passed by a smaller majority than this.
As the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) continues to consider the filing, onlookers are wondering how long the case will delay Germany’s ratification of the UPC (which is mandatory for the system to come into force).
Constantin Kurtz, partner at law firm Klaka in Düsseldorf, said it is possible for the court to reject the case without holding an oral hearing, but this is unlikely. He expects a hearing to take place in either 2018 or early 2019, noting that the court must issue its decision within three months of the hearing having finished.
If this timeline proves to be correct, Germany would not be able to ratify the UPC until perhaps the summer of 2019.
In one of the latest developments in the case, the German Bar Association has said the complaint is entirely unfounded. But Kurtz says the complaint’s arguments regarding the procedure of selection and appointment of the judges are serious from a German perspective.
