Germany wants UPC project to go ahead, despite ruling
The German government is pushing for the Unified Patent Court (UPC) project to go ahead, just one week after the country’s Federal Constitutional Court concluded that the Act of Approval for the UPC Agreement was null and void.
In a press release issued on Thursday, March 26, 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.”
On March 20, the German Federal Constitutional Court upheld the constitutional complaint filed against the country’s UPC legislation by Düsseldorf-based attorney Ingve Stjerna in 2017.
The Act of Approval was found to be void, as 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.
Lambrecht added that the government would “carefully evaluate” the decision of the Federal Constitutional Court and “examine possibilities to remedy the lack of form found during this legislative period”.
Technically, the German parliament could rectify the situation by voting on the act again and obtaining a two-thirds majority.
However, the UPC Agreement will need to be amended because of the UK government’s decision to withdraw from the project in February, which pushes the decision further down the line.
The COVID-19 pandemic is also likely to cause significant delays—both in terms of amending the agreement and in terms of arranging a new vote.
In an analysis of the court’s decision, published by WIPR last week, Tilman Müller-Stoy, partner at Bardehle Pagenberg in Germany, said that if the UPC Agreement is revised the opportunity should be seized to make the system more attractive.
He concludes: “There are still many aspects that need to be considered and clarified before a version of the UPC Agreement exists which can be considered for ratification. This will take time, if there is even sufficient political will. The COVID-19 crisis is another delaying factor. Yet, that does not change anything about the fact that most of industry is rightly in favour of the system even without the UK, and time for improvements isn’t a bad thing, is it?”
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