Germany's new approach to the Unified Patent Court

Werner A. Roshardt

The German government wants to respond with a "short blow" to the negative verdict of its constitutional court. In March 2020, the court had decided that the first ratification of the EPC from 2017 was formally invalid due to the lack of a two-thirds majority. The new ratification law went through the first reading in the German Bundestag at the beginning of October and is expected to be passed this November in the context of the 2021 budget vote. In this way, the government hopes to make the agreement a success in the interests of European industry in the near future.

For a long time now, companies have been wishing for a Europe-wide patent. But so far, despite tireless work on compromises, this wish has not become reality. This year too, there were two setbacks. Great Britain has definitely withdrawn its earlier ratification in order to implement BREXIT. This means that one of the central pillars of the treaty has been removed. As if that were not enough, the German Federal Constitutional Court also declared the German ratification invalid because the parliamentary vote was not carried out with the necessary two-thirds majority.

The government intends to remedy the previous shortcoming by means of a new vote with a large turnout. The proponents are aware that the treaty still contains the provisions that assume British participation. In order not to have to go back into the complex negotiation situation, they take the position that the treaty can simply be adapted to the new situation by way of interpretation. This would then finally bring the Unified Patent Court under roof.
However, the battle for the new court will probably not be won that easily.

Even if the verdict of the Federal Constitutional Court (BVerfG) can be superficially overcome by a second vote with the necessary presence and majority of parliamentarians, there are also deeper constitutional problems. They are related to the way judges at the Unified Patent Court are appointed and reelected. These problems were already addressed in the constitutional complaint filed in 2017. However, the BVerfG had not (yet) commented on these arguments. If a new complaint were to be filed, however, it would then have to assess these issues. And it would be premature today to assume that the court would easily decide in favor of the agreement.

The hope that the agreement would not have to be renegotiated because of BREXIT, but only interpreted, is hardly realistic. After all, the locations of the central chambers of the court are not the result of a mathematical calculation, but of a political final negotiation. Italy has submitted its application for the vacant court in Londen. A political decision on this has not yet been made among the signatory states.

Finally, without the United Kingdom, the financial advantages of the agreement and, consequently, the assessment of the patent fees for the unitary patent will have to be re-weighted.

It may still take some time before the first European patent with unitary effect is challenged before a central court.