Germany’s decision causes new delays but not death of the UPC project.
The German Constitutional Court (Bundersverfassungsgericht), in a decision (2 BvR 739/17) that has taken almost 3 years to arrive, has further delayed the whole UPC (Unified Patent Court) project by deciding that the Act to approve the UPCA (Unified Patent Court Agreement) passed by the German Parliament (Bundestag) does not comply with German Constitutional law.
The UPC project suffered a blow early this year when the UK Government published its negotiating objectives for the post-Brexit relationship between the UK and the EU, which ruled out any jurisdiction for the Court of Justice of the EU (CJEU) over the UK – as the CJEU would have a limited oversight of the UPC, this means that UK will not seek to remain a member having left the EU. For some, this cast doubt over whether the system would be viable at all.
This decision of the German Constitutional Court will certainly delay, but should not spell the end of, the UPC project. It appears a new attempt to ratify the agreement in the Bundestag could be brought forward, but this time requiring a two-thirds majority. This delay may give time to find a resolution to the location of the Life Sciences part of the Central Division – the agreement currently specifies that this will be in London, which would fall outside the territory covered by the Unitary Patent, and the European Union. It seems an amendment to the UPCA could be concluded to relocate this court and then ratified by the German Parliament, and possibly the other signatory states.
There is doubt over whether the German Parliament (Bundestag) will ratify the agreement, due to the current Coronavirus situation, Brexit being in full process, and the term of the current members in parliament ending in 2021.
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