Paris, January 5, 2021 – Both chambers of German Parliament have once again voted in favour of the act approving the Unified Patent Court, with enough votes to avoid the invalidity ground raised in the constitutional complaint against the first version of the act. This second iteration must now be promulgated. However, two new complaints have already been filed against it.
Following the vote of the Bundestag on November 27th, 2020, the Bundesrat, the second chamber of the German Parliament, in turn voted in favour of the act approving the Unified Patent Court on December 18th, 2020. As a reminder, the previous version of the act was ruled to be invalid by the German Federal Constitutional Court (see our dedicated article) on the ground that the required two-thirds majority was not achieved by the Parliament during the vote (because not enough parliamentarians were present at the time). This condition has been fulfilled; the new complaints should therefore be based on other grounds.
For it is not one, but two complaints that have already been filed with the Federal Constitutional Court, according to Juve Patent.
The appeals have once again been filed before the completion of Germany’s ratification process: the law still has to be signed by the Federal President and published in the Federal Law Gazette.
The Agreement on a Unified Patent Court provides for an entry into force between three and four months after ratification by 13 States, including the three main Member States in terms of European patent grants (Art. 89 of the Agreement). In the most favourable case, i.e., if the complaints do not substantially slow down the ratification process, the provisional application period could in theory begin as early as the first quarter of 2021. Patentees could then take advantage of this period to decide whether or not they wish their granted European patents to be judged before the Unified Patent Court. Under this scenario, the Unified Patent Court could therefore open its doors by the end of 2021, or early 2022. Whether this timeline will be followed or not will largely depend on what influence these new complaints will have.
As always, the teams at Regimbeau are at your disposal to assist you in determining how best to anticipate these developments.
