Decision in early 2020 on German constitutional complaint against UPC legislation


In an interview to Managing IP (see here), Justice Peter Huber, the rapporteur in the complaint in the German Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) against the Unified Patent Court (UPC) legislation, spoke about the timeframe for the BVerfG’s decision in the case. Justice Huber said he intended to issue the decision “early next year”, although the timing would depend on the time it takes for him and the other judges to deliberate on and amend the judgment (there being a need for them to consider in detail its formulation and wording).  The case (together with many other cases) has been on the annual BVerG’s list of cases intended to be decided in both 2018 and 2019, and there have been reports on the expected timing of the decision from a BVerfG spokesman, but this is the first time a judge hearing the case has spoken (publicly) about timing.

If the BVerfG’s decision is that the complaint be dismissed, this removes one factor holding up the start of the proposed unitary patent and UPC system, but the other factor, i.e. Brexit, remains. Dismissal of the complaint would enable Germany to consent to the provisional application of the UPC Agreement and (providing one more country consents) the Provisional Application Phase (PAP) will start, allowing recruitment of judges and other final preparations.  Germany would also be able to ratify the UPC Agreement, which it would do during the PAP to trigger the UPC’s opening three months later. However, whether, due to Brexit, the German government would immediately take action is not clear, although it recently confirmed its commitment to the UPC project (reported here). As reported last week, the effect of Brexit on the UK’s participation in the UPC system is considered in this article (first published in Intellectual Property Magazine, November 2019).

Gregory Bacon


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