Date: 20 March 2020
The German Constitutional Court (BVerfG) today handed down its long-awaited ruling on whether the German parliament acted constitutionally when passing a law consenting to participating in the Unitary Patent Court Agreement.
The BVerfG ruled that transfer of jurisprudence to the UPC is a constitutional change that would require a two-thirds majority in the Bundestag. Since no such motion has been approved, the present law is null and void.
A new legislative procedure will be required if Germany wishes to re-start the process.
We reported on 28 February that the UK government has declared its intention not to participate further in the UPC and the Unitary Patent. Please see our article here:
Spain declined to participate from the start. Other major states within the EPC, such as Switzerland, were excluded when it was decided to try to use EU procedures to push the program forward.
The UPC was the culmination of more than four decades of effort. It was tantalisingly close. Perhaps it still is. Or perhaps it is time now to take a pause. Let EU-UK negotiations run their course; let global events settle; have a change of cast among the political characters.
Pressing forward with a re-iteration of the present agreement runs the risk of introducing a system that is little more than a parallel system to the existing German system. It would be “Germany+” and would open up forum shopping and complexities for the smaller businesses it is supposed to serve.
We do not write off all the effort that has been put into the present system. Let us salute the work and patience of those who have devoted years of their lives to try to bring this about. Special mention to Alexander Ramsay, Chair of the Preparatory Committee; Kevin Mooney, Chair of the Drafting Committee of the Rules of Procedure; and to the IT Case Management System Task Force at the UKIPO. Their work will not be wasted. Each iteration takes us closer to the long-term goal.
Please see our statement in German here: Endstation für das europäische Einheitspatent?
Our partners Hugh Dunlop, Katie Cameron and James Cross met up to discuss the changes to UK intellectual property law in 2021. You can watch their conversation here: Our partners in conversation about IP law in 2021