Further delays to the opening of the UPC foreseen

Earlier this year it became clear that the German ratification of the UPC had been delayed, due to a request from the German Federal Constitutional Court (FCC) to the German President to wait with his executing of the UPC ratification law. No specific details regarding this request were available at the time.

However, now further information about the details of the complaint has been published. The FCC has provided the following answer relating to the substance of the complaint:

“In terms of substance, plaintiff is essentially asserting a breach of the limits to surrendering sovereignty that are derived from the right to democracy (Art. 38 (1), clause 1, Basic Law). Primarily the following violations are asserted:

  • breach of the requirement for a qualified majority arising from Art. 23 (1), sentence 3, in conjunction with Art. 79 (2) Basic Law;
  • democratic deficits and deficits in rule of law with regard to the regulatory powers of the organs of the UPC;
  • the judges of the UPC are not independent nor do they have democratic legitimacy
  • breach of the principle of openness towards European law owing to alleged irreconcilability of the UPC with Union law.

The proceedings are pending; a specific date for the decision is presently not foreseeable.”

Note: The above English translation is copied from the link below (Kluwer Patent Blog), where the original German text can also be found.

Without going into details on German constitutional law, the conclusion from Thorsten Bausch (Hoffmann Eitle) who made the original post at the Kluwer Patent Blog is cited below.

“All in all, in view of the number and the complexity of the issues to be resolved by the FCC, I now consider it very unlikely that the UPC will be able to start in early 2018. More patience will probably be necessary, and perhaps much more”.

For more detailed information, please read the complete blog post from Thorsten Bausch (Hoffmann Eitle) at the Kluwer Patent Blog

Thus, in spite of the statement from EPO President Benoît Battistelli, who at a UPC conference in July expressed his confidence in seeing the opening of the UPC and the first Unitary Patent delivered in early 2018, it seems likely that the opening of the UPC may be further delayed.

We will keep you updated on further developments.

For more information on the UPC please visit read our article “A few questions and answers about Unitary Patents and the Unified Patent Court”, or contact Jakob Schwalbe Lohmann directly.

READ ALSO: Plougmann Vingtoft helps patent Denmark’s best idea