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?

In its order released on 20 March 2020, the Federal Constitutional Court (FCC) holds the act of approval to the Agreement on a Unified Patent Court (“UPC”) void due in particular to the lack of a qualified majority vote. While this decision delays the ratification of the UPC Agreement by Germany even further, the future of the UPC seems more than ever uncertain. However, in upholding the constitutional complaint on this ground, a future ratification of the UPC Agreement by Germany still remains possible.

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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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The decision on the constitution complaint directed against the Act of Approval to the Agreement on a Unified Patent Court is announced to be published on 20 March 2020

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.

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Order N°2018-341 of May 9th, 2018, Regarding Unitary European Patents and The Unified Patent Court

After the ratification of the Unified Patent Court Agreement (UPCA) by the United Kingdom on April 26th, France has just adopted new Order n°2018-341 of May 9th, 2018, regarding Unitary Patents and the Unified Patent Court (the “Order”).

While this new law intends to amend the French Intellectual Property Code in view of the upcoming changes with Unitary Patents (“UP”) and the Unified Patent Court (“UPC”), it is supposed to have a wider impact on patent law in France.

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The UK ratified the Unified Patent Court Agreement on 26th April 2018

The UK ratified the Unified Patent Court Agreement (UPCA) on 26th April 2018 despite the Brexit vote and the currently ongoing negotiations for the UK to leave the UE.

Only the German ratification is now missing for the system to go alive, as France has already ratified the UPCA. However, Germany’s ratification has been further delayed since the constitutional complaint against the ratification of the UPCA (End of March 2017). If the German Federal Constitutional Court (FCC) decides not to admit the complaint, the German ratification procedure can resume (within approx. 6 months), still possibly before Brexit day (29th March 2019). If the FCC admits the complaint Decision, the decision will not be expected before end 2019 (may be even much later if the FCC refers the matter to the European Court of Justice), and the UK will have left the EU by that time.

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