The launch of the Unified Patent Court and Unitary Patent has been dealt a blow from an unexpected corner. Following delays caused by Brexit and the political uncertainty in the UK, the attention suddenly shifts to the ratification process in Germany. It is being reported that the German Federal Constitutional Court (Bundesverfassungsgericht) has asked the German President to hold off bringing into force implementing legislation concerning the Unified Patent Court and Unitary Patent. This follows a constitutional complaint brought by an unknown individual; the complaint is currently pending before the court (case reference 2 BvR 739/17).

Details of the constitutional complaint are not yet known. The Constitutional Court has the power to declare legislation unconstitutional, thus rendering it ineffective. Asking the German President to suspend the implementation of laws that have been passed by both the lower and upper house of the German parliament is relatively uncommon and suggests that the Court considers a success of the constitutional complaint to be in the realms of possibility.

The ratification of the Unified Patent Court Agreement (UPCA) by Germany is likely to be delayed, knocking back, perhaps significantly, the launch date of the Unified Patent Court and Unitary Patent. It is expected that the Court will issue an order regarding the constitutional complaint in the next 6 months, raising the prospect of a delay of the Unified Patent Court and Unitary Patent into the first part of 2018. That presupposes, of course, that the complaint ultimately fails or the legislation can be remedied following directions by the Court. If however the Court finds the legislation unconstitutional in its entirety, it could prevent the launch of the Unified Patent Court and Unitary Patent regime in its current form altogether, as the regime cannot come into effect until Germany has ratified the UPCA.