German court deals hammer blow to UPC
The German Federal Constitutional Court has upheld the constitutional complaint filed against the country’s Unified Patent Court (UPC) legislation, less than one month after the UK said it would not be seeking involvement in the system.
Today, March 20, the German court concluded that the Act of Approval for the UPC Agreement is null and void, after it was passed with an insufficient quorum in the German parliament.
According to the court, a two-thirds majority was required to pass the act.
The court had announced it was delaying the country’s ratification of the UPC Agreement because of a constitutional complaint, filed by Düsseldorf-based attorney Ingve Stjerna, in June 2017.
Stjerna questioned the democratic accountability of the regulatory powers overseeing the UPC’s operation and the independence of the judiciary. Stjerna also argued that the UPC breaches existing EU law.
The German parliament could rectify the situation by voting on the act again and obtaining a two-thirds majority. However, while this is technically possible, it would cause significant delays to the project. Ultimately, it is likely that this decision signifies the end of the UPC.
Responding to the judgment, the UPC’s preparatory committee said: “Despite the fact that the judgment will result in further delay the preparatory work will continue, while the judgment and the way forward is further analysed.”
More details and analysis of the decision will follow shortly.
UK involvement
In late February, the UK government confirmed it would not be seeking involvement in the UPC, despite the country’s ratification of the underlying agreement in April 2018.
In a quote sent to WIPR, a UK government spokesperson said: “The UK will not be seeking involvement in the unitary patent/UPC system. Participating in a court that applies EU law and bound by the Court of Justice of the European Union (CJEU) is inconsistent with our aims of becoming an independent self-governing nation.”
The decision was met with disappointment, with Kevin Mooney, partner at Simmons & Simmons in London and the chairman of the drafting committee for the UPC’s rules of procedure, stating that it was a great shame for the UK IP community.
He added: “The strange thing is that this project is probably one of the only European projects that has, up until now, the complete support of European and UK industry and had complete government support.”
The past month had been filled with speculation over whether the UPC would go ahead without the UK, but the German court’s decision has likely confirmed the killing blow.
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