The end of the year is fast approaching. And with it, the official Brexit is getting closer as well. And while the UK has already ratified the Agreement regarding the Unified Patent Court, the launch of the Unitary patent is now delayed by constitutional complaints in Germany. Consequently, a post-Brexit Unitary patent seems inevitable.
Constitutional complaints in Germany
A panel of the German Federal Constitutional Court has received four cases regarding the possible breach of the constitution as a result of the current organisation of the Boards of Appeal at the European Patent Office and as a result of the Unified Patent Court Agreement (UPCA). The court asked the German government to postpone the ratification of the UPCA, necessary for the launch of the Unitary patent, until after the decision of the court.
It was expected that the court would consider the constitutional complaints in 2018. There are rumours that this will still happen in December, but these rumours have not been confirmed.
Update of the Preparatory Committee of the Unified Patent Court project
Yesterday, the Preparatory Committee of the Unified Patent Court published an update on her website. It is the first update since April 2018. The update reads:
‘2018 has been a year of mixed highs and lows. This year has seen two more Signatory States ratify the Unified Patent Court Agreement, namely the UK and Bulgaria which means there are now 16 ratifications in total of the Agreement, well over the number required. We still await the outcome of the complaint pending before the Constitutional Court in Germany before the project can move into the next phase, the period of provisional application.
Despite the current, somewhat unpredictable environment, the technical and operational preparations are continuing allowing for the project to move at pace in the event of a positive outcome from the German Constitutional Court.
The status of the project is constantly being reviewed and the Chairman continues to meet with the Executive Group and the operational team on a monthly basis.’
The UK is the 16th country to ratify the UPCA. 13 countries, including the UK, France and Germany, are required for the entry into force of the UPCA. Consequently, as the number of countries has already been met, only the German ratification remains.
The Agreement will enter into force on the first day of the fourth month after Germany deposits its instrument of ratification. 13 countries, again including the UK, France and Germany, also have to consent to be bound by the Provisional Application Protocol (PAP), which allows for certain parts of the Agreement to be implemented early, such as the recruitment of judges.
In an optimistic scenario, the constitutional complaint in Germany is found inadmissable in december of this year and the Unitary Patent Court Agreement could enter into force as per April 1, 2019. This is already a few days later than the official Brexit date of March 29, 2019. Without a deal (a 'hard Brexit') the UK will no longer be part of the European Union after March 29, 2019, and participation of the UK in the Unitary Patent Project is one step further away.
If the constitutional complaints in Germany have any merit, then this will not only mean further delay for the Unitary patent. The constitutional complaints are also directed at the organisation of the Boards of Appeal of the European Patent Office. The European Patent Office processes all of the current European patent applications. Hence, the decision in the German cases may also have great consequences for the European Patent Office.
Please check our website to keep up to date with the latest developments regarding the Unitary patent. Please also check our file on this subject. If you have any questions, please do not hesitate to contact one of our advisors.