A year-end oracle: Will 2021 bring the European Unitary Patent?


Almost unnoticed by the public, the "unitary patent" project cleared another hurdle on December 18, 2020: The German Bundesrat, the representation of the German states in the German legislative process, gave its approval.

Theoretically, things could now move very quickly:

Often, the law is driven to the Federal President just on the day of this approval. He then signs it as soon as he is next in the house. The clarification on constitutionality is typically done before the vote in the Federal Council. The necessary publication and deposit would also be quite possible before the end of the year..... The political will for speed seems to be there: The unitary patent is already being promoted as an economic development tool in and after the Corona crisis. And the European Patent Office also announced in summer 2020 that the organization and technology are in place.

So will we have the unitary patent on April 1, 2021?

Most likely not: There is still a constitutional complaint pending before the German Federal Constitutional Court and, unlike the complaint that has already been decided, this time it is a matter of content.

If the Federal President assumes, on the basis of the pending proceedings, that the law requires closer scrutiny and the court demands substantive changes in its ruling, the unitary patent is likely to remain a dream for some time to come: After all, that would mean renegotiation of the treaties and many national ratification procedures.

However, the German government and the EPO seem to be optimistic about the outcome of the proceedings: The draft of the now adopted law was sent to interested parties for comments on June 10, 2020, even though (or precisely because?) the German Bundestag decided only a few weeks earlier, on April 22, 2020, to participate itself as a party to the proceedings, which are still open. The EPO cite "early 2022" as the expected start date.

On Dec. 28, 2020, the first legislation on the Dec. 18 agenda of the Bundesrat was published. The law that would allow Germany to ratify the Agreement on a Unified Patent Court was not among them so far: So the Federal President seems to be in less of a hurry. Will he wait for the ruling?

Personally, I assume that the EPO date will come true and that we will be able to use the unitary patent from the beginning of 2022: Since the pending ruling was already announced for 2020, it should be announced in the not too distant future. Since the text of the law has not changed, the emergence of new lawsuits against the law also seems unlikely to me.

What does this mean for owners of a European patent application?

Contact us if you are interested in principle in a unitary patent.

We cannot promise you anything. However, if it is likely to come into force, we can try to delay the examination procedure so that you have a choice when the patent is granted. After all, it is the date of grant that determines whether a unitary patent can be applied for or not.