German Constitutional Court blocks Unitary Patent progress

By Robert Balsters,

The Unified Patent Court Agreement received a further blow this month after Germany’s Federal Constitutional Court declared the Act establishing the system null and void on constitutional grounds.

The Federal Constitutional Court of Germany (FCC) has partially agreed with the constitutional complaint that the Act establishing the Unified Patent Court Agreement (EPGÜ-ZustG) is void, on the ground that the German Parliament (Bundestag) did not vote with the required majority to ratify the Act. According to the FCC’s ruling, a two-thirds majority was necessary to approve the substantial constitutional amendment required to transfer ‘sovereign rights’ to the Unitary Patent Court (UPC) system. All other grounds of the constitutional complaint were discarded.

The decision will further delay Germany’s ratification of the UPC, and follows news last month that the UK ‘will not be seeking involvement’ in the UPC and Unitary Patent system.

In theory, the Bundestag could vote again to ratify the EPGÜ-ZustG with the required two-thirds majority; however, it is unlikely that this will be done in the short term due to the current situation with the coronavirus outbreak.

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Robert Balsters is a Patent Attorney at Novagraaf in Geneva.

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