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Unitary Patents– now a reality?



United Kingdom

Last week the German Federal Constitutional Court rejected the latest attempts to scupper Germany's ratification of the Unitary Patent Court Agreement, and it seems that the Unitary Patent system may finally now become a reality.

Recap: now where did we get to?

We have been closely following all the twists and turns of the Unitary Patent and the Unitary Patent Court Agreement (UPCA)'s "progress" in recent years. At the end of 2020, its future was once again looking uncertain, with the exciting news on 18 December that the German Parliament had adopted the ratification Bill, being quickly overshadowed by news of two new constitutional challenges. (See our blog in December 2020 for more background details of the rollercoaster of events during 2020: Unitary Patent - back in business?).

Latest ruling by the German Federal Constitutional Court

In a press release published on 9 July 2021, the German Federal Constitutional Court (FCC) announced that it had rejected the latest constitutional challenges against the December 2020 ratification Bill for the UPCA. While the FCC's ruling was directed at the two applications for preliminary injunction against the ratification Bill, it stated in its reasoning that the underlying constitutional complaints lodged in the main proceedings were inadmissible as the complainants had failed to sufficiently assert and substantiate a possible violation of their fundamental rights.

One of the two complainants was patent lawyer Dr Ingve Stjerna (who also brought one of the earlier challenges in 2017) and the other was rumoured to be the FFII (Foundation for a Free Information Infrastructure).

Next steps?

So after almost a four year delay, it appears that the route to German ratification of the UCPA has finally been cleared and Germany can deposit its ratification Bill. 

However, there are a few further hurdles to overcome particularly in relation to the UK's post-Brexit decision not to participate in the system (see Unitary Patent in limbo after UK takes its final step away?).  A solution needs to be found to the problem that the UK was one of the three states, together with Germany and France, which had to ratify the UPCA for it to come into effect. There is also the ongoing question over the location of the life sciences seat of the central division of the UPC, which was due to be London, with unsurprisingly interest from a number of countries, with Italy reported to be particularly keen. In addition to this, for the project to move into its final phase, a further two signatory states must agree to be bound by the Protocol on Provisional Application.

Despite these final few stepping stones in its path, the UPC system seems a lot closer following events in Germany last week and it is conceivable that it will be up and running in late 2022 or early 2023. This means that businesses can finally now start to plan their long-term patent strategy with more certainty.