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22 February 2018Patents

German court agrees to hear UPC complaint

The German Constitutional Court (Bundesverfassungsgericht, BVerfG) has agreed to hear a constitutional complaint disputing the legitimacy of the Unified Patent Court (UPC).

In June last year, the court announced it was delaying Germany’s ratification of the UPC Agreement because of the complaint, which was believed to have been filed by Düsseldorf-based attorney Ingve Stjerna.

Stjerna questioned the democratic accountability of the regulatory powers overseeing the UPC’s operation and the independence of the judiciary. He also argued that the UPC breaches existing EU law.

The complaint prompted the BVerfG to ask Germany’s Office of the President not to sign the law on ratification while the case was being dealt with, a request which the presidential office has agreed to.

According to the German Bar Association, the complaint is entirely unfounded.

The BVerfG will hear 36 cases throughout the year, according to its publication of the ‘ Overview for the year 2018’. This includes the constitutional complaint.

By agreeing to hear the matter, the BVerfG could still dismiss the complaint, but it is not yet known when the case will be heard.

The court’s decision to hear the complaint is not surprising, according to Constantin Kurtz, partner at Klaka.

“It is good news that the court wants to hear the case in 2018 because this makes it more likely that we will get a decision before Brexit will become effective,” he explained.

Germany and the UK must ratify the UPC in order for it to be implemented.

Kurtz added that if the UPC is implemented before Brexit (due to take place on March 29, 2019) it is “more likely that the UK will be part of and stay in the system”.

However, Peter Koch, legal director at Pinsent Masons, said that the lack of a precise schedule means that the decision to hear the case will push the creation of the UPC far past its planned launch, probably into 2019/2020.

He added that hopes that Stjerna’s legal challenge would not pass the “obviously unfounded” threshold have “dissolved” with the court’s agreement to hear the complaint.

Marianne Schaffner, partner at Dechert, is awaiting the outcome of the court’s decision with “bated breath”.

“I’m hoping the decision will be positive for the UPC—that is to say that the complaint will be dismissed, and we can open the UPC,” she continued.

Schaffner said the future of the UPC is “dependent on the outcome of this case, as the UK has now put everything in order to ratify the UPC Agreement”, as reported by WIPR earlier this month.

But regardless of the decision in Germany, further complications will be caused by the UK’s upcoming departure from the EU.

Schaffner explained that protocols will need to be amended to allow the UK to retain its membership of the UPC without being a member of the EU, and the UK’s refusal to acknowledge the supremacy of the Court of Justice of the European Union—which will sit above the UPC —could prove problematic.

“We have to find a solution,” she concluded.

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