One again, the start of the UPC (Unified Patent Court) suffered a serious setback. Further to the confirmation(*) from the United Kingdom Government late February that the country will not be part of the UP (Unified Patent) system and the UPC (Unitary Patent Court), now the German Federal Constitutional Court has delivered its decision to uphold the constitutional complaint against the German act of approval of the UPCA (Agreement on the Unified Patent Court). 



The German Federal Constitutional Court ruled on 20 March that both the required quorum and a two-thirds majority in the Bundestag were lacking for passing the act of approval of the UPCA. That decision would allow even though the German Government to try again the ratification of the UPCA. 



However, many believe that it will not happen, at least in the near future. The United Kingdom, deemed a key player, or even indispensable for the system, has already announced that it will not remain part of the Agreement and even if that announcement were not made, many other countries consider that the UP system and UPC would have to be redesigned in view of the Brexit. 



For others, the judgement results merely in a delay to the process. The UPC Preparatory Committee has stated that the preparatory work will continue, while the judgment is further analysed, despite the unprecedented challenges with the COVID-19 outbreak. 



Whether or not this is the final blow to the UPC, the judgment rendered by the German Federal Constitutional Court on the act of approval of the Agreement on the UPC, represents at least a significant delay, possibly by years, to its start.   



A.G. da Cunha Ferreira will keep your apprised of any developments on this issue. 



(*)A representative of the current UK Government has made announcements to the patent publication Juve Patent, confirming that the UK will not be seeking involvement in the UP/UPC system. He has declared that participating in a court that applies EU law and bound by the CJEU [Court of Justice of the European Union] is inconsistent with the UK aims of becoming an independent self-governing nation.

30 March 2020