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Two new constitutional complaints in Germany against UPCA
Blog 24 Dec 2020

Two new constitutional complaints in Germany against UPCA

Last month we reported that the German Bundestag adopted the draft ratification bill regarding the Agreement on a Unified Patent Court (the UPC Agreement). Meanwhile, as expected, the bill has been challenged by means of several constitutional complaints.

It is the second time the German Bundestag voted in favor of the Agreement. The first time, a private person filed a constitutional complaint based on a number of alleged deficiencies. The complaint was upheld by the Federal Constitutional Court of Germany, based on just one of the contested issues, namely failure to meet the quorum for a 2/3 majority of Parliamentarians  as required for an agreement, in which rights are given up by the autonomous country. The other issues were not addressed in the Court’s decision and have also not been resolved by re-adopting the earlier bill with the required quorum.

This time, two constitutional complaints have been filed. A decision date is currently not foreseeable. Moreover, it is not yet known who filed the complaints and no details have emerged regarding their content. Possible complainants include patent lawyer Inve Stjerna, who filed the previous complaint, and the Foundation for a Free Information Infrastructure (FFII), which already indicated that they consider filing a constitutional complaint.

It thus remains uncertain whether and how the UPC Agreement might come into effect. Nevertheless, the approval by the Bundestag clearly showed that the political will required for the new system is still firm.

The UPC is envisioned as a pan-EU patent court, which would also provide for unitary patents to be valid across all the participating member states. The UPC Agreement was signed in 2013, and since then many EU member states have already ratified it. However, the UPC Agreement cannot come into effect before Germany has ratified it. The first complaint was filed in March 2017. It took three years before the decision arrived: the Federal Constitutional Court partly upheld the complaint. In this light, it is quite uncertain what the Court will decide about the new complaints and how long it will take before a decision is reached.

Even if the complaints are dismissed, further changes to the implementation of the UPC will have to be arranged, to address the UK’s withdrawal from the Agreement earlier this year. For example, another location would have to be identified to replace the London branch of the Court’s Central Division.