The Bundestag and Bundesrat have passed German laws on the European patent with unitary effect (the “European Unitary Patent”) and the Unitary Patent Court (the “UPC”). These laws, which still have to be signed by the German President, should have been implemented without delay, although the German government always emphasised that it wished to wait to ratify them until after the United Kingdom had ratified its own legislation.
According to a report in the Frankfurter Allgemeine Zeitung, at the beginning of April, the Federal Constitutional Court approached the German President requesting him not to sign these laws. By making this request, the Federal Constitutional Court may avoid having to formally prohibit the German President from signing this law owing to time constraints related to a constitutional appeal and a fast-track application that are allegedly pending against the laws on the European Unitary Patent.
The subject matter of the constitutional appeal and the corresponding fast-track application is likely to address the legality of the European Patent Office (EPO), which will be responsible for granting European Unitary Patents and appeals filed against these patents. The fact that EU regulations on the European Unitary Patent, the Convention on the Unitary Patent Court and German implementation statutes rely on the organisation of the EPO, means that they expose themselves to the same constitutional law criticism, which is already the subject of several constitutional appeals. There is no effective legal protection against EPO decisions declaring European patents null and void and the boards of appeal responsible for opposition proceedings are not sufficiently free of the EPO’s head office.
The Federal Constitutional Court’s request indicates that it does not consider the fast-track application to be hopeless. During a fast-track application, the Federal Constitutional Court will balance the opposing interests by looking at the threatening consequences of hindering legislative procedure until the court has decided on the merits versus the consequences arising from legislation that has already been passed. This balancing test will allow the court to con-sider the validity of the legal arguments put forward. If the Federal Constitutional Court al-lows the fast-track application, Germany will not be able to ratify the UPC Agreement until a decision has been made on the merits or at least until the EPO is reformed. Introduction of the UPC system, which did seem attainable, despite the delays caused by Brexit, would be post-poned indefinitely.
In addition to the uncertainty caused by Brexit, exacerbated by the results of the 8 June 2017 General Election in the UK, this is another setback to the European Unitary Patent and the UPC. Just last week, on 7 June 2017, the Preparatory Committee for the UPC announced that the commencement date scheduled for December 2017 would be postponed once again; a new date has not yet been announced.