The future of the Unified Patent Court was dealt a further setback last week by a judgment in the German Federal Constitutional Court.
In its majority decision of 5 to 3 (Justices König, Langenfeld & Maidowski dissenting), the court held that the conferring of sovereign German powers to the UPC would violate the German people’s rights to democratic self-determination.
German law requires a legislative majority of two thirds in the Bundestag to transfer German sovereign rights regarding patents to the UPC, as such measures would amend the constitution on “substantive terms”.
This is not the first blow to the UPC in national constitutional courts, with Hungary making a similar judgment in 2018 which held that the provisions of the UPC were incompatible with Hungary’s constitution. The UK government also recently announced that it will not participate in the UPC because it was “inconsistent with our aims of becoming an independent self-governing nation.”
Commenting on the latest development, Steve Smith, managing partner at Potter Clarkson Group, said:
This decision puts another hurdle in the way of the Unified Patent Court. Whether it proves merely to be a procedural hiccup or the death knell for the UPC remains to be seen. It will be interesting to see if, and how, both EU and German legislators adapt to this latest setback, and whether there is the desire, and requisite majority, to re-run this legislation through the German parliament.
A UPC without the UK and Germany is certainly not what was envisaged. Much will depend on whether there remains a political will across Europe to bring the UPC to life.”