By Deborah Kirk, Charles Courtenay, Christian Engelhardt, Yasmina Borhani and Andrea Stout

Germany’s constitutional court, the Bundesverfassungsgericht, has requested that the German President hold off on signing the legislation ratifying the Unified Patent Court (UPC) and the Unitary Patent (UP) following a constitutional complaint from an unnamed individual. The court did not disclose the nature of the complaint and only stated that it will investigate it as soon as possible in order to avoid delays. Delays in Germany will considerably affect the implementation of the UPC across Europe as Germany is one of three counties (including the United Kingdom and France) required to ratify the Unified Patent Court Agreement (UPC Agreement), the international agreement which brings these measures into effect. Ten other member states must also ratify the agreement.

The legislation, which will implement the European legislation at the national level in Germany, has already been approved by the other legislative bodies, the Bundestag and the Bundesrat, and is now only awaiting the signature of the German President, Frank-Walter Steinmeier. A court spokesperson said that Steinmeier has agreed to delay signing the legislation until the investigative ruling has been completed, which has been described as the “typical” approach.

This request, as reported by Hendrik Wieduwilt of the German newspaper, Frankfurter Allgemeine Zeitung, means that there will likely be further delays to the launch of the UPC, which has been delayed multiple times since the UPC Agreement was signed in 2013. Germany is one of the member states required to ratify the UPC Agreement but it is expected to be the last country to do so. The UPC Preparatory Committee stated earlier this month that its most recent timetable for the UPC Agreement entering into force in December 2017 cannot be maintained due to delays but no new timetable has been proposed. The Bundesverfassungsgericht investigation could further delay implementation from several months to years depending on the nature of the complaint.

The UPC will establish a single European patent court covering 25 countries and provide a more efficient, cost-effective and streamlined patent process. The UP will be a single patent granted centrally, by the European Patent Office, effective in all EU member states that have signed up to the UPC Agreement (all except for Spain and Croatia) and litigated solely within the UPC system. For patent holders that do not wish to transition to the UPC system, and thus remain under the present system, there is an opportunity to “opt-out” of the UPC through an administrative process for a limited time period, previously expected to commence in September 2017 for a period of three months. It is likely that the delays noted above will push this timetable to later.

We will provide updates on the status of the UPC implementation as and when these are made available.