German UPC challenge statistically likely to fail

German UPC challenge statistically likely to fail

07 July 2017

Lisa Schneider (Rechtsreferendarin seconded to Bristows)

When assessing the prospects of success of any individual legal action, it is generally speaking relatively meaningless to consider the fate of equivalent cases.  However, in the absence of any other information, there are few (if any) alternatives.  Hence when considering how likely it is that the Unified Patent Court (UPC) could be derailed by the recent constitutional complaint that was filed in Germany’s Federal Constitutional Court (BVerfG) (reported here), it is at least potentially instructive to consider the statistics published by the BVerfG.  These show the overall success rate of constitutional complaints (Verfassungsbeschwerden) over the last 30 years is less than 3%, and in the last five years, less than 2%.  Even when taking into account that these cases encompass a large variety of types of complaints with very different prospects of success, the low success rate is still meaningful.  Whilst this does not, of course, mean that there is no cause for concern, it is at least encouraging, and suggests that the UPC Preparatory Committee and individual contracting states are well advised in their strategy of carrying on with their preparations for the start of the Provisional Application Phase later this year.

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