Another blow to the European Unitary Patent Package: the German Federal Constitutional Court apparently asked the German Federal President not to execute the national legal instruments necessary for Germany’s ratification of the Agreement on a Unified Patent Court and the ancillary protocols to this agreement.
The new European Unitary Patent Package – including the establishment of the new Unitary Patent as well as the implementation of the new Unified Patent Court (UPC) - will automatically enter into effect upon ratification of the Agreement on a Unified Patent Court as well as of the ancillary protocols (e.g. concerning provisional application) by a sufficient number of member states necessarily including, inter alia, Germany. After the United Kingdom of Great Britain confirmed its general willingness to proceed with the ratification process despite the BREXIT in the end of 2016, the start of the new system was expected for December 2017. In a press release of June 7, 2017, however, the Preparatory Committee of the Unified Patent Court already admitted that this previously announced target date for the entry into operation of the UPC cannot be maintained due to an insufficient number of ratifications to date.
The recent move of the German Federal Constitutional Court casts further doubt on the starting date of the new patent and court system. Notably, the formal and material legislation for the ratification had already passed the competent German legislative bodies. However, the respective bills have to be executed by the German Federal President for the formal conclusion of the ratification process. Apparently, a German individual filed a constitutional complaint with the competent German Federal Constitutional Court against these national statutes. According to the reported preliminary opinion of this court, the complaint is at least not a manifestly unfounded. The court thus asked the German Federal President not to execute the ratification instruments in order not to create a fait accompli that might be found to violate the Constitution of the Federal Republic of Germany later on.
The German ratification of the Agreement on a Unified Patent Court and the ancillary protocols is compulsory for the new system’s entry into operation. The German Federal Constitutional Court’s demand thus casts significant doubts on a start in the near future. Depending on its object and outcome, the pending constitutional complaint against the national German ratification instruments might even endanger the whole project in its present form. Besides the UK’s future attitude towards ratification after the re-election a few days ago, this new development in Germany presently constitutes the biggest risk for the ambitious project of unitary patent protection in Europe as such.