The Unified Patent Court is coming

Germany ratifies the Protocol on the Provisional Application of UPC Agreement

Today, the German government deposited the instrument of ratification for the Protocol on the Provisional Application of UPC Agreement. This represents an important milestone on the path towards establishing the Unified Patent Court.

Federal Minister of Justice Christine Lambrecht states:

"This step brings us significantly closer to European patent reform, which is so important for innovative companies in Europe. The Unified Patent Court will come. For German industry, which holds around 40 percent of all European patents filed from Europe, better protection of inventions in the European single market is of particular importance. This is especially true for small and medium-sized companies, which contribute significantly to the innovation potential of our country."

European patent reform forms the new legal framework for uniform European patent protection, with the EU unitary patent and the Unified Patent Court as the first civil court with cross-border jurisdiction. This is of particular importance in economic terms, as the Unified Patent Court can rule on infringements as well as the validity of protective titles in one set of proceedings and thus provide legal certainty in the common market at low cost. The protection of inventions will be especially improved for small and medium-sized enterprises (SMEs) operating in future-oriented fields of innovation. Their cross-border business activities will be significantly simplified thanks to easier access to patent protection and because multiple proceedings will be avoided.

So far, 15 signatory states have ratified the Agreement themselves. These are Austria, Belgium, Denmark, France, Luxembourg, Malta, Portugal, Sweden, Finland, Bulgaria, Estonia, Italy, Latvia, Lithuania, and the Netherlands. On the basis of these ratifications that have already taken place, the Agreement will enter into force when it has also been ratified by the Federal Republic of Germany.

However, before this can happen, the Unified Patent Court must first be made operational in organizational terms. For this purpose, among other things, the judges of the Unified Patent Court must be selected and appointed and secondary legislation, in particular the Rules of Procedure, must be adopted. This will be carried out on the basis of the Protocol on the Provisional Application of the Agreement ratified by Germany today. Provided that two more states declare their formal agreement to the Protocol in the coming weeks as expected, the Protocol is likely to enter into force in the fall of 2021 and the Unified Patent Court can come into being as an international organization. The completion of the preparatory activities will take some time. Germany will ratify the Agreement as soon as it is foreseeable that the Unified Patent Court is fully operational. The German government expects the Agreement itself to enter into force from mid-2022. Only when the Agreement enters into force will jurisdiction be transferred to the Unified Patent Court.

Following an initial decision by the Federal Constitutional Court (Bundesverfassungsgericht), the German Bundestag passed the Act Approving the Agreement on a Unified Patent Court at the second attempt on November 26, 2020, with the required two-thirds majority of its statutory members, with the votes of SPD, CDU, Bündnis 90/Die Grünen, Die LINKE, and FDP. The Bundesrat also unanimously approved the Act at its session on December 18, 2020. Since December 18, 2020, two further constitutional complaints had been pending before the Federal Constitutional Court. Following the decision of the Federal Constitutional Court published in July 2021, the execution and promulgation of the challenged law – initially postponed at the request of the Federal Constitutional Court – could now take place. This clears the way for Germany to participate in European patent reform.

This article is a translation of an original press release of the Federal Ministry of Justice and Consumer Protection from 09/27/2021.
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