Germany Ratifies EU Unified Patent Court (UPC) Agreement, but Prospects for the UPC Remain Uncertain

Other Author      Charlotte Lehmann, Legal Intern

On 7 August 2021, Germany formally ratified the Agreement on a Unified EU Patent Court ("UPC Agreement"). The ratification came after battles in recent years over the constitutionality of the ratification bill.

In 2017, the German ratification was put on hold because a constitutional complaint had argued that the German law approving the UPC Agreement was passed without the required quorum of the German Parliament. After the German parliamentarians fixed their mistake and approved the draft law with a two-thirds majority on 26 November 2020, the ratification was stopped for a second time due to two applications for an interim injunction against the ratification bill. On 23 June 2021, both complaints were held inadmissible by the Federal Constitutional Court as the complainants had failed to sufficiently substantiate a possible violation of their fundamental rights.

The ratification concludes the German national ratification process, but the prospects of the Unified EU Patent Court and the EU Unitary Patent entering into force anytime soon remain uncertain, especially after the UK ceased to be a member of the EU in 2020.

The Idea of a Unitary European Patent

At present, patent protection in Europe can be obtained through either national patents, issued by the respective national offices, or European patents, granted by the European Patent Office. However, despite the name suggesting otherwise, a European patent is not a unitary property right with effect for the entire EU but only a ‘bundle’ of individual national patents. Judicial relief can only be obtained on a national level and only applies to the territory of each respective member state.

On 19 February 2013, Germany, together with 24 other EU member states, signed the UPC Agreement, which is part of a regulatory package on patents that ultimately aims to introduce a European patent with unitary effect at the EU level. The entering into force of the UPC Agreement will complete the reform of the European patent system, which has long been pursued. The UPC Agreement provides for the establishment of a Unified Patent Court as a court common to all participating member states for disputes concerning European patents and European patents with unitary effect. The UPC would have exclusive jurisdiction over various types of patent disputes such as nullity and infringement actions.

Requirements for Entry into Force

The UPC Agreement was conceived as an international treaty between the participating EU member states and, as such, requires ratification in each member state. According to Art. 89(1) of the UPC Agreement, it shall enter into force once 13 member states have ratified it, including the three member states in which the highest number of European patents had effect in 2012 (Germany, UK and France).

Quo Vadis, UPC?

As of today, Germany and 15 other EU member states, including France, have ratified the UPC Agreement. And although the German ratification has removed one major obstacle, others have arisen as a result of the UK ceasing to be an EU member state and withdrawing its UPC ratification in 2020. Not only was the UK required to ratify the UPC Agreement, but also one of the branches of the UPC’s central division was supposed to have a seat in London. There is ongoing debate on whether the member state with the fourth highest number of European patent applications in 2012 (likely Italy) can simply replace the UK. The Preparatory Committee for the UPC is currently discussing the consequences of the UK's withdrawal and will announce the way forward on its website soon.