On December 18, 2020, the German parliament again approved the necessary legislation for ratifying the Unified Patent Court Agreement (UPCA), now with the required two-third majority, one of the stumbling blocks of the previous ratification. On the same day, two new constitutional complaints were filed by someone who remains anonymous for the time being: history seems to be repeating itself.
The Unified Patent Court Agreement (UPCA or UPC Agreement) is important for realizing the Unitary patent, a European patent which after grant is valid in all member states of the European Union that have ratified the UPC Agreement.
The filing of two new constitutional complaints against the UPC Agreement is not surprising: the missing two-third majority when ratifying the legislation for the first time was just one of four constitutional complaints which were filed in March 2017. The German constitutional court rejected the earlier ratification on this formal ground alone, and did not get into detail about the other constitutional complaints.
The German legislation is now approved largely in unamended form compared to the earlier attempt. The earlier constitutional complaints may thus still be applicable and could delay the entry into force of the UPC Agreement even further.
We now await the response of the German constitutional court to the new constitutional complaints. At the earlier ratification, the German constitutional court asked the German president to temporarily halt the ratification process pending the decision on the constitutional complaints. There is a chance this will be happen again.
[Update January 13, 2021:]
The German constitutional court has indeed asked the German president to temporarily halt the ratification process. The court now has to decide on the new complaints. The last time this happened it took them approximately three years to reach a decision.
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.