In an order published on Friday 9 July 2021, the Second Senate of the German Federal Constitutional Court rejected two applications for preliminary injunction directed against the Act of Approval for ratifying the Agreement on a Unified Patent Court (the “UPC Agreement”).
In the constitutional complaints, the complainants had alleged a violation of their rights under German Basic Law. In sum, the complainants asserted that their right to democratic self-determination, as derived from German Basic Law, was violated. They claimed that the principle of the rule of law, the fundamental right to effective legal protection and EU law were violated, and that the precedence of EU law laid down in Art. 20 of the UPC Agreement amounted to an impermissible encroachment upon German constitutional identity as enshrined in German Basic Law.
At the same time, the complainants requested that the Federal President of Germany be ordered not to execute and promulgate the EPCÜ-Custody Act II (“the German UPC Ratification Act”) until a decision would be reached in the main action, or alternatively, to prohibit him from executing and promulgating the German UPC Ratification Act by way of a preliminary injunction.
In Friday´s published decision, the German Constitutional Court stated that the constitutional complaints lodged in the principal proceedings were inadmissible as the complainants failed to sufficiently assert and substantiate any possible violation of their fundamental rights.
As a result, the German Federal President is now free now to sign the necessary documents which would allow the UPC to enter into force. In the German legal community, it is generally believed that the UPC Agreement will begin in the second quarter of 2022.
As of today, there are 15 Signatory States of the UPC Agreement (not including the UK, which withdrew its ratification in connection with Brexit): Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal and Sweden. In the upcoming Unitary Patent system, applicants of European patent applications will have the chance to request and obtain unitary effect of such applications in the above-mentioned countries and in future additional EU Member States which will ratify the UPC Agreement at a later date. Spain, Croatia and Poland have indicated that they will not proceed with ratification.
Given the above, now may be a good time to take another look at your existing European patent portfolio to decide which patents you would like to opt out of the new system that may arrive quite soon as a result of this decision.
One of the main factors to evaluate in this respect is that the Unified Patent Court will have jurisdiction not only over Unitary Patents, but also existing European patents. Therefore, there is a risk that your existing European patent could be subject to a central invalidity attack before a Unified Patent Court, while an opted-out European patent only will be subject to the jurisdiction of national patent courts of the member states in which the patent has been validated.
For more information on this decision, please see the English-language press release of the German Constitutional Court here.
The authors would like to thank Andreas Herden, PhD, of the German IP firm Blumbach Zinngrebe Patentanwälte PartG mbB, for his valuable contribution to this article.