Again, and again: the UPC agreement is further challenged in Germany

Although the German Parliament (« Bundesrat ») recently voted in favor of the ratification of the Unified Patent Court Agreement (UPCA) (that we reported here), and despite the political will (see there), the German ratification of the UPCA is again put on hold.

The German Federal Constitutional Court (FCC) advised that that two new constitutional complaints were filed on the very same day on which the Bundesrat approved the ratification (18th December 2020).

One of the complaint, filed by Düsseldorf lawyer Ingve Stjerna, who already filed an earlier constitutional complaint in 2017, aims at obtaining an interim order to cease the ratification process until a decision on the merits.

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Further step in ratification of UPC by Germany

As expected, the second chamber of the German Parliament (« Bundesrat ») has just voted today in favor of the ratification of the Unified Patent Court Agreement and of the Protocol to the Agreement on a Unified Patent Court (click here)

The vote was unanimous and the next step is now a formal signature of the Law by the German President.

Before the law is signed, we will monitor whether another appeal is filed before the Federal Constitutional Court, as it is expected from entities opposed to this agreement, in particular in the field of free software.

We will keep you promptly informed of the next developments and more generally in relation to the pending questions of the relocation of the London section of the UPC and the third Member State required to ratify the UPC Agreement in place of the UK.

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New Ratification of The UPCA by The Bundestag – What Is Next ?

The German National Assembly (Bundestag) has now adopted the law for ratifying the Unified Patent Court Agreement (UPCA) with the required majority. As a next step, the Bundesrat, the second chamber, has to approve the law. As the Bundesrat did not have any objections previously, it is likely that the law will pass with the required majority. The next session of the Bundesrat is planned for 18 December 2020, however the schedule of the session is not yet fixed. After the vote of the Bundesrat, the government and the president have formally to sign the law.

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The United Kingdom (UK) has now officially withdrawn from the Unified Patent Court Agreement (UPCA)

The UK has today notified the council secretariat about their withdrawal of their ratification of the UPCA and the Protocol on Privileges and Immunities of the Unified Patent Court. The UK considers that the withdrawal shall take effect immediately.

The UK has already announced earlier this year that they do not longer wish to be a party to the UPCA. However, until now, it was not clear when the UK will proceed with the withdrawal.

The Preparatory Committee of the UPC will now discuss the consequences of the UK withdrawal and will see how to move forward. It will then publish a further announcement.

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Political will in Germany for the UPC Agreement to be submitted to a new vote as soon as possible

While the Federal Constitutional Court of 20 March 2020 ruled in Germany that the act of consent to the UPC Agreement is not constitutional and therefore void, a press release of 26 March 2020 from the German Federal Minister of Justice clarified the current political will in Germany.

In a clear statement, the Federal government confirmed that it keeps on upholding the project of a single European patent system with a European patent Court.

The Federal Government is committed in examining the possibilities to remedy the lack of form of the act of consent to the UPC Agreement, as found by the Federal Constitutional Court.

According to the decision of the Federal Constitutional Court, a constitutional majority in the Bundestag would have been required for the vote of act of consent to the UPC Agreement, since it implies a transfer of rights to an international institution and thus leads to a change in constitution.

The Federal Minister of Justice suggested that this should be made during the current legislative period that is due to end in 2021, if possible.

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