German government to consider how to proceed with UPC

German government to consider how to proceed with UPC

31 March 2020

The German Federal Ministry of Justice and Consumer Protection has published a press release here (in German) indicating that, despite the recent decision of the Federal Constitutional Court (BVerfG), it intends to continue working to enable the introduction of the unitary patent and Unified Patent Court (UPC) system.  In the press release, its Minister, Christine Lambrecht, said that the government would carefully evaluate the BVerfG’s decision and “examine possibilities to remedy the lack of form found during this legislative period.”  The legislative period will end during the second half of 2021 (probably between August and October) when the federal election takes place (electing members of the Bundestag).

The EPO has stated here that it welcomes this announcement by the German government.  However, although the EPO President, António Campinos, said that the announcement “makes it clear that approval of the UPC Agreement with the required parliamentary majority is still possible”, there is some doubt whether the required majority (two thirds of members) of both the Bundesrat and Bundestag would be achieved.  When the legislation was previously passed in March 2017 (albeit with insufficient Bundestag members present) that was in the previous legislative period and, following the federal election in September 2017, the composition of the Bundestag is different; for the first time Alternative for Germany (AfD), which was opposed to the UPC, was represented, becoming the third largest party.

Also, as reported here, there are other factors to consider.  Unless the UK government changes its latest position that it will not be seeking involvement in the UPC system, will France and sufficient other countries decide the system should still go ahead?  If so, the UPC Agreement will require amendment (possibly by a Protocol) before the legislation required for Germany to ratify enters the German parliament.  Also, there will be varying procedures (of varying length) required in each country to consent to an amended Agreement or a Protocol.  All these steps will take considerable time, and even more so while the COVID-19 pandemic continues.  Furthermore, there is the clear possibility of a further constitutional complaint being filed in Germany.

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