Draft UPC ratification bill presented in Germany

The German government has submitted new draft legislation to ratify the Unified Patent Court (UPC) Agreement, three months after the country’s Federal Constitutional Court annulled the ratification.

In March, the Constitutional Court  upheld a constitutional complaint filed against the country’s UPC legislation, concluding that the Act of Approval for the UPC Agreement was null and void, as it was passed with an insufficient quorum in the German parliament.

The decision looked like it might wreck the UPC project, particularly as it came one month after the UK said it would not be seeking involvement.

However, one week after the court’s ruling, Germany’s minister of justice and consumer protection Christine Lambrecht said: “I will continue to work to ensure that we can provide the European innovative industry with a single European patent with a European patent court.”

Then, on Wednesday, June 10, the German government  submitted a draft bill on the Agreement, which it said would remedy the lack of form and look to obtain the required two-thirds majority.

While the German government is pushing for the UPC, there are a number of potential barriers that could slow down the implementation.

Tilman Müller-Stoy of Bardehle Pagenberg recently  outlined the Constitutional Court’s reasoning, noting that there were three further attacks in the constitutional complaint: the status of the judges of the UPC did not comply with the rule of law; acts of the UPC affecting fundamental rights were lacking democratic legitimacy; and the UPCA contravened EU law.

While the court decided the complaint was inadmissible in respect of all three claims, it’s possible that challenges encompassing these objections could be made down the line.

The Agreement will need to be amended regardless because of the UK government’s decision to withdraw from the project in February. The life sciences section of the central division of the court, which had been allocated to London, will also need to be moved.

Last week, WIPR reported that the European Commission’s top IP official had predicted the establishment of a unitary patent system in Europe “before the end of next year”.

In agreement, Kevin Mooney, a member of the expert group advising on the implementation of the UPC, said that the “end of 2021 is the earliest we can hope for the court to open”.

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