The end of the Unified Patent Court?

Düsseldorf, 12.03.2020 – The plans for a Unified Patent Court (UPC) in Europe have for the time being failed. The British government announced at the end of February that Great Britain will no longer participate in the UPC system or in the associated community patent. With this decision, the country is once again distancing itself from the EU: "Participation in a court that applies EU law and is controlled by the ECJ is not compatible with our goal of becoming an independent, self-governing nation," the online platform JUVE Patent quotes a spokesperson of the Prime Minister. As recently as November 2016, the UK had announced that it would continue preparations for ratification of the agreement for the UPC despite the announced EU withdrawal.

The UK's abandonment of the UPC has once again shaken the project and will further enhance Germany's status as a venue for high profile patent infringement proceedings. Furthermore, the jurisdiction of German courts for patent infringement proceedings will no longer be questioned by the UPC plans for the time being. In view of the expected high costs for patent infringement proceedings before the UPC, this is good news for German SMEs from the perspective of Cohausz & Florack (C&F): "Due to the acceptable costs and the expertise of the courts in this country, Germany has proven to be an ideal place of jurisdiction for companies of various sizes", says Gottfried Schüll, patent attorney and partner at C&F. Proceedings before the UPC would have been much more closely aligned to the needs of large industrial companies.

In addition to Brexit and the UK's renunciation of further participation, the lack of ratification by Germany also represents a hurdle for the UPC. The reason for this lies in pending lawsuits before the Federal Constitutional Court concerning whether the European Patent Convention (EPC) violates the German Basic Law. If the judges were to affirm this, the start of the UPC would be even more distant.

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