German Court deals hammer blow to UPC

Hardly a hammer blow! More like the final nail in a coffin that was buried last month, when the United Kingdom indicated that it would not be seeking to remain within the unitary patent system. In the meantime, any mourners have long been sent home and locked down by CoVid-19.

It is unlikely that many will even be bothered to read the obituary.  According to the decision of 168 paragraphs, just five of the eight judges upheld the complaint, with the decision of the President Prof. Dr. Dres. h. c. Andreas Voßkuhle being determinative. Of the various headings to the complaint, only one point appears to have prevailed, namely that the necessary quorum of 2/3 of the 709 Bundestag delegates was not achieved. In fact it appears that only around 35 delegates remained when topic 42 was finally discussed, shortly before the house closed at 01.40 in the morning of 10 March 2017. Apparently, that was not unusual for so-called ‘acts of approval’ and the dissenting three judges were of the opinion that any changes to the accepted practice could instead thwart the democratic process by narrowing Parliament’s political leeway in the context of European integration.

What that actually means for the daily workings of the Bundestag is of course quite irrelevant to the future of a European system of patents. As mentioned in our previous post of 2 March this is a case of ‘back to square one’. If, once the Corona meltdown has subsided, anyone has the political will to get this process moving again it is clear what they will have to do: - rewrite the Unitary Patent Agreement without references to the UK and ensure that approval before the Bundestag is not scheduled on an evening that clashes with International football or Eurovision.