Further delays for the Unitary Patent, or the beginning of the end?

In March 2017 an individual filed a complaint at the Federal Constitutional Court in Germany that German ratification of the Unitary Patent Court Agreement (UPCA) would be unconstitutional. The German ratification process has therefore been put on hold. German ratification of the UPCA is critical to the Unitary Patent system as Germany is one of the three signatories (along with the UK and France) required for the system to come into force.

In late August 2017, the German court set a tight deadline for selected parties to file submissions on the complaint. These parties include the German Ministry of Justice, the German Bar Association and the European Patent Lawyers Association. The request for submissions perhaps suggests that the court will not simply dismiss the complaint out of hand, whereas the tight deadline might suggest that we can expect a ruling later this year.

However, if the complaint is admitted, there is a chance that questions regarding EU law will be referred to the ECJ. This would lead to substantial delays in the Unitary Patent system’s start date. Equally, with an eye on Brexit taking place in 2019, further political bargaining could affect the viability of the project. If the German court finds that German ratification of the UPCA would be unconstitutional, then the whole future of the system could be in doubt.