UPC one step closer after German FCC ruling

After a protracted process, the Unified Patent Court (UPC) is now closer to becoming reality after the German Constitutional Court (Bundesverfassungsgericht) rejected applications for injunctions to prevent Germany ratifying the UPC agreement. As such, the court potentially paves the way for the project to move forward.

On July 9, 2021, the German Federal Constitutional Court (FCC) rejected two applications for preliminary injunctions against the German UPC laws, paving the way for potentially ratifying the Unitary Patent Court. As such, Europe is now one step closer to welcoming a unified patent system.

The court said the complaints, filed in December of 2020, were inadmissible as “the complainants failed to sufficiently assert and substantiate a possible violation of their fundamental right,” states a press release.

The gestation of the UPC has not been an easy one. The process started back in 2013 when a number of European countries signed the Unified Patent Court Agreement to establish the UPC. The court was originally supposed to be up and running by 2017, but the project has been delayed by several injunctions before the German FCC questioning the compatibility of the UPC system with the German Constitution.

As a result, Germany has postponed ratifying the Unified Patent Court Agreement, halting the entire process.

The new ruling, however, paves the way for the joint patent court to move forward once Germany ratifies the agreement.

Which countries participate in the UPC?

While the original idea of the UPC was to create a unified patent court in Europe, not all European countries will participate in the new court. For example, both Spain and Poland have previously announced that they will not participate. Additionally, the United Kingdom has decided to withdraw from the UPC agreement following its exit from the EU.

Despite the few opt-outs, the court will still have jurisdiction over much of Europe and current signatories count Denmark, Germany, France, Italy, Netherlands, Belgium, Bulgaria, Estonia, Latvia, Luxembourg, Austria, Finland and Sweden. Further European states are expected to ratify the agreement in the coming months.

For the full press release from the German Constitutional Court click here.

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.