Germany delay probably not the end of the UPC, say lawyers

Germany’s delay of the ratification of the Unified Patent Court (UPC) Agreement is unlikely to signal the end of the project, although it may have knock-on effects.

Earlier this week, WIPR reported that the German Constitutional Court (Bundesverfassungsgericht) had held up the process because of a constitutional complaint filed by a private person.

It appears that the individual has claimed that the German parliament (Bundestag) hasn't followed the proper voting procedure for the agreement.

The court confirmed that during a phone call with the Office of the Federal President, a German federal authority, it was told by the office that the implementing legislation would not be brought into force until a decision had been issued.

Although the consensus among the lawyers WIPR spoke to was that the delay doesn’t mean the end of the project, there’s still some uncertainty.

The request of the court came as a complete surprise for Frank-Erich Hufnagel, head of Freshfields Bruckhaus Deringer’s patent litigation group in Düsseldorf, although he doesn’t believe this is the end of the project.

“Whether this surprising, but so far only temporary, setback in Germany together with the remaining uncertainties about the position of the UK will be enough to derail the project entirely remains to be seen,” said Hufnagel.

When questioned whether the current signatories may sign a new deal on their own, Hufnagel explained that given the time it took to get this far, and the relative importance of both the UK and Germany for the success of the system, a new deal would not seem to be a very likely alternative at this stage.

“The old wisdom ‘I only believe it when I see it’ seems to be as true as ever for the UPC project,” he added.

Wouter Pors, head of Bird & Bird’s IP practice in the Netherlands, explained that the Bundesverfassungsgericht has the authority to issue an order blocking the president from signing in a law.

“However, it hasn't done that. It has simply asked the president to wait for its judgment and the president's office has agreed to that,” Pors said, adding that the court is aware of the urgency of the matter, caused by the fact that the UPC has to open for business in the near future.

According to Pors, with the summer holidays rapidly approaching, the selection interviews for judges will have to wait until after the holiday season and will probably start in September.

Earlier in June, the preparatory committee  announced that the introduction of the UPC Agreement had been postponed because some countries had not yet ratified the agreement.

“The entry into force of the UPC Agreement has to be planned carefully by the preparatory committee in order to allow for the selection, appointment and subsequent education and training of the judges,” he said.

If the UK and Germany were to deposit their ratifications too soon, the UPC would automatically open before the judges are ready, warned Pors, adding that the last of the two ratifications should be deposited at a point in the autumn, determined by the preparatory committee (or, by that time, the administrative committee).

Pors explained: “Depending on the speed and outcome of the case before the German Constitutional Court and the approval of the Protocol on Provisional Application, this delay doesn't need to be substantial.”

Hufnagel added that it’s not unrealistic to expect that the court will take a few months to decide upon the complaint or, at least, about interlocutory relief on the basis of the complaint.

Did you enjoy reading this story?  Sign up to our free daily newsletters and get stories like this sent straight to your inbox