Germany Can Proceed with the Ratification of the Unified Patent Court Agreement
On 9 July 2021, the German Federal Constitutional Court rejected the two pending applications for preliminary injunction directed against the Act of Approval adopted by the German Upper House on 18 December 2020 for the purposes of ratifying the Unified Patent Court (UPC) Agreement.
While this rejection clears the way for Germany, the last mandatory participating state, to complete the ratification of the UPC Agreement, it is still unclear when the remaining hurdles for the UPC to operate and the associated European patent having unitary effect to be established may be overcome.
Indeed, two additional Signatory States must still agree to be bound by the Protocol on Provisional Application of the UPC Agreement. Moreover, it is still unknown when and how a new seat can be found replacing the London branch of the Central Division without incurring further delays or, worse, further legal complaints in view of the UPC Agreement in its current version. An action of the UPC Administrative Committee might be necessary to bring the UPC Agreement in line with the European Union (EU) law, by replacing London, a non-EU location as a result of Brexit, with a EU location, on which the participating states have still to agree, in a complaint-proof manner. Among the candidates as a third seat of the Central Division, there are Milan, Amsterdam and Paris. Should the approach of sharing the litigation cases originally envisaged for the London branch between Munich and Paris prevail, it is still unknown how their distribution has to be made. Last but not least, even if Germany is the last mandatory participating state and is now free to finalize the ratification of the UPC Agreement, more adhesions from additional, albeit non-mandatory participating states would contribute to strengthen the importance of the UPC and indirectly accelerate the process.
For the time being, the Preparatory Committee has not communicated a possible timeline yet, including the start of the provisional application period and the so-called sunrise period, during which applicants and owners may opt out European patents and applications, respectively, from the exclusive competence of the UPC before the UPC becomes operational. As soon as such a timeline and a more detailed plan for the start of these periods are known, we will report it.
