Green Light for Unitary Patent and Unified Patent Court

The long-awaited EU Unitary Patent and Unified Patent Court (UPC) looks likely to be launched in 2022, after Germany’s top court rejected two challenges to ratification on Friday, July 9.

In its decision, the Federal Constitutional Court rejected both the applications for preliminary injunction directed against the Act of Approval to ratify the Agreement of February 19, 2013 on a Unified Patent Court (UPCA). (BVerfG, Beschluss des Zweiten Senats vom 23. Juni 2021- 2 BvR 2216/20 -, Rn. 1-81.)

The English-language press summary is here.

The Court stated that the constitutional complaints lodged in the principal proceedings were inadmissible as the complainants failed to sufficiently assert and substantiate a possible violation of their fundamental rights.

This is the second time the Court has ruled on the ratification of the UPCA. It previously upheld a complaint that the Bundestag had passed the necessary legislation without the required two-thirds majority. This led to a second vote, in November 2020, with the necessary majority.

Next Steps

The Court’s clear rejection of the complaints as inadmissible should clear the way for Germany’s president to sign the ratification of the UPCA and the Protocol on Provisional Application.

Germany will be the 13^th Member State to ratify the UPCA, while three countries still need to ratify the Protocol: these are expected to be Germany, Austria and Slovenia. The UPC Agreement will enter into force four months after the 13^th ratification.

The Unitary Patent and UPC were agreed in February 2013, after years of efforts to negotiate a simpler, cheaper means of protecting and enforcing patents in Europe. The delay in implementation has been caused by various developments, including the legal challenges in Germany and the Brexit vote—which eventually led to the UK withdrawing from the UPC.

After implementation, inventors will be able to apply for a Unitary Patent which will be valid in all participating member states without further validation. The UPC will provide centralized revocation and infringement proceedings, avoiding duplicate actions in national courts and the risk of contradictory judgments.

Up to 25 of the 27 EU Member States are expected to participate in the system, with Spain and Poland having decided not to do so. However, not all are likely to be part of the system at launch, meaning businesses will have to consider carefully the costs and benefits of the system for their patent applications.

The Unitary Patent will provide an additional option, alongside national and European patents, for obtaining patent protection in Europe. The European Patent Office will conduct search and examination as it does as present. When the patent is granted, the proprietor can request unitary effect.

Costs will be reduced by eliminating some translation costs: after a six-year transition period, no post-grant translations will be required while translation costs will be subsidized for some applicants.

A significant advantage compared to national/European patents is that there will be one renewal procedure, rather than separate ones for each Member State. Renewal fees have been set to be comparable to the fees covering the four most popular EPC Member States.

The UPC will have local, regional and central divisions throughout the participating Member States, with its headquarters in Paris, France and an appeal court in Luxembourg. It will also have a registry, training center for judges and mediation and arbitration center. Panels will comprise legally and technically qualified judges.

Full details about the Unitary Patent and UPC are available on the dedicated website.

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