Clarity on timing of German court challenge

27 February 2018

With the UK likely to formally ratify the agreement for a Unified Patent Court (UPC) in the coming months, a legal challenge in the German courts remains the most significant obstacle to the new system entering into force. However, recent news suggests that the resulting delay may not be as significant as some had feared.  

Last year, with sceptics suggesting that the UK’s decision to leave the European Union may spell the end of the UPC project, a fresh problem arose in the form of a challenge in Germany’s constitutional court to the legality of the agreement and the ratification process.  Although the precise details of the challenge are not publicly known, it is believed that they relate to alleged flaws in the German ratification process, an assertion that the impending change in the status of the UK renders the current agreement void, and to ongoing issues relating to the management of the European Patent Office (EPO).  While many commentators have suggested that these complaints are likely to be dismissed, there was uncertainty surrounding the timescale for the court process. 
Thankfully, this uncertainly has recently been lessened, as the German courts have published a hearing schedule for the coming year that lists the UPC challenge as one of the cases to be considered.  This provides at least some hope that the present delay will soon come to an end, perhaps allowing for the UPC to come into force as soon as early 2019.  Nevertheless, there remains the possibility that the German courts will give the legal arguments more weight than expected, and that the court’s involvement could in fact represent the beginning of yet further difficulties.
Potter Clarkson will continue to report on developments in the UPC.  For more information, please contact your usual Potter Clarkson representative.

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