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.
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.
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.
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.
According to the website of the Council of the European Union, Lithuania has completed its ratification formalities on 24 August 2017. This is the 14th ratification following that of Estonia which joined the unitary patent system on 1 August 2017.
To be complete, the unitary patent system requires 13 ratifications, including France, Germany and the United Kingdom. France is already part of the system since 14 March 2014. However, according to the Preparatory Committee, the United Kingdom and Germany still have some hurdles to overcome before the unitary patent system enters into force (you can see our previous posts on the situation in the UK and Germany)
Still, the Preparatory Committee is confident that the UPC will come into force around January 2018.