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While the constitutional complaint against the Unified Patent Court (“UPC”) filed in April 2017 with the German Federal Constitutional Court (“FCC”) was put on the case list to be heard in 2018 and in 2019, the FCC has announced that the decision will be released on 20 March 2020.

It should be underlined that decision is announced to be published without a prior oral hearing.

Such announcement is particularly surprising in the middle of the covid 19 outbreak.

Germany is the third signatory country of the UPC agreement – with the UK and France – whose ratification is necessary for the UPC to enter into Force.

Such ratification by Germany would only be possible either:

  • after rejection in full by the FCC of the constitutional complaint, or
  • after a vote by the German parliament of a new ratification bill in the event that the FCC held the constitutional complaint partially grounded in deciding that the challenged ratification process was unconstitutional.

In the event that the constitutional complaint is held completely grounded, Germany would not be able to ratify the current UPC agreement.

Such delay in the decision of the FCC has been said by many observers to aim at providing the member states of the UPC agreement with time in order to anticipate on the consequences of Brexit and of the withdrawal of the United Kingdom from the UPC agreement.

Coincidence or not, the announcement of the decision of the FCC came shortly after some clarifications were brought by a spokesperson of the British government who stated on 27 February 2020: “the UK will not be seeking involvement on the Unified patent system”, since “participating in a court that applies EU law and is bound by the ECJ is inconsistent with the aims of becoming an independent self-governing nation”.

This statement still need to be confirmed by the British government upon official request for confirmation sent by the House of Lords’ EU Justice Sub-committee to the government on 11 March 2020.

Yet, much remains unclear and major questions are currently open and being discussed by the UPC Members States and the UPC Preparatory Committee:

  • To what extent and by which legal route would it be necessary to amend the UPC package (the two regulations and the international agreement) agreed in 2012, after the Brexit and the confirmation of the non-involvement of the UK in the UPC system?
  • Where would be relocated the London section of the UPC?
  • What would be the third Member State required to ratify the UPC Agreement in place of the UK? This is supposed to be determined according to the number of European patents and it is currently being disputed between Italy and the Netherland.

Needless to say that the outbreak of the covid 19 is likely to bring a serious halt in the discussions relating to the UPC.

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German Federal Constitutional Court upholds the constitutional complaint regarding the UPC for lack of qualified majority vote: is there still a chance for the UPC?
Order N°2018-341 of May 9th, 2018, Regarding Unitary European Patents and The Unified Patent Court
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