Düsseldorf, July 4, 2017 – After Brexit already made a near-term ratification of the Agreement on the Unified Patent Court by Great Britain seem uncertain, a constitutional complaint in Germany against the agreement now poses a further obstacle for the start.
Great Britain did in fact signal late last year that it would keep to the planned ratification despite Brexit. However, such ratification has not yet taken place. Given the highly complex and controversial negotiation situation regarding the final form of Brexit, doubts about a smooth ratification do not seem to be inappropriate.
In addition, the German Federal Constitutional Court has now asked the Federal President to not issue the laws on the Unified Patent Court as approved by the Bundestag and Bundesrat. Thus, ratification by the Federal Republic has for now also become a distant prospect.
The Court justified its request with the fact that the complaint was not immediately lacking any prospect of success and it therefore needs time to make a decision. It can be assumed that the decision on the Unified Patent Court is partially linked to complaints regarding the organization of the European Patent Office, which are also pending before the Federal Constitutional Court. Constitutional complaints are pending against them because of supposedly insufficient legal protection before the European Patent Office against decisions of the boards of appeal of the same.
A clarification of the situation by the Federal Constitutional Court is to be welcomed from the point of view of the users of the European patent system, even if the process of the implementation of the Unified Patent Court is substantially impaired by the request of the Court to not issue the laws.
As a result, it remains to be seen if and when both obstacles can be cleared out of the way. Any prediction in that respect is currently like looking into a crystal ball. So, it will be interesting to see what happens.