• news-banner

    Expert Insights

German constitutional court rules against adoption of UPC, and UK government confirms intention not to participate, but hope remains

At the end of March, the German constitutional court upheld a complaint that the German ratification of the Agreement on a Unified Patent Court (UPC Agreement) was unconstitutional. All is not lost, however, as the German government has indicated that it intends to pursue the project in the future.

In 2017, a complaint was filed by a German attorney on the basis that: (1) the ratification of the Agreement was in breach of the German constitution, (2) there is a democratic deficit inherent in the structure of the UPC, (3) the UPC judges lack independence, and (4) the UPC Agreement is irreconcilable with EU law.

The German constitutional court issued its decision on 20 March 2020.  It dismissed the second, third and fourth elements of the complaint, on the grounds that they were inadmissible. However, it held that the ratification of the UPC Agreement was in contravention of the German Basic Law.  Although the bill ratifying the UPC Agreement was adopted unanimously by the German federal parliament, only 38 delegates were present for the vote (out of 709). As a result, this did not provide the two-thirds majority required under the German Basic Law in relation to a decision involving a transfer of sovereignty.  

The decision is a significant setback, as it further delays the introduction of the UPC and Unitary European Patent. It does, however, leave the door open for the adoption of the UPC in the future, provided that it is passed by the necessary majority. In a reaction to the decision the German Minister of Justice and Consumer Protection, Christine Lambrecht, promised to continue to work towards a single European patent and a European Patent Court and to examine the possibility of remedying the lack of form before the end of the current legislative period (which ends in 2021).

Due to the UK’s exit from the EU, and the British government’s decision not to try and pursue participation in the UPC (which was recently confirmed in a letter from the IP Minister to the House of Lords), it is unlikely that the UPC Agreement will come before the German parliament again in its current form.

Without the involvement of the UK, the Unitary Patent and UPC are a less attractive proposition. However, provided that there remains sufficient goodwill towards the project amongst the remaining participating states, the UPC Agreement could be renegotiated so that it does not depend on the involvement of the UK. There may even be an opportunity to address some of the issues that have been flagged in relation to the current Agreement and to widen its scope to allow participation by non-EU states.   

Supporters of the unitary patent and UPC should therefore not entirely despair, but a further delay of at least several years looks likely.

Our thinking

  • Triple Play "Bid Fever": UK Tech's ability to scale and go global

    Mark Howard

    Quick Reads

  • The Future of AI and Copyright Regulation in the UK: The Data (Use and Access) Bill finally gets Lords approval in the UK

    Rebecca Steer

    Quick Reads

  • Representative actions: lessons learnt from two recent cases

    Simon Heatley

    Insights

  • World Intellectual Property Review quotes Olivia Gray on the post-Brexit treatment of design rights

    Olivia Gray

    In the Press

  • Rebecca Steer writes for Artificial Lawyer on GenAI, copyright and the future of innovation

    Rebecca Steer

    In the Press

  • Government received 11,500 responses to AI and Copyright Consultation

    Rebecca Steer

    Quick Reads

  • UK Government’s Consultation on Copyright and AI: What’s Next for AI Developers and Creators?

    Rebecca Steer

    Insights

  • Guide to launching online consumer brands in the UK – 10 essential steps

    Rebecca Steer

    Insights

  • EU Design Legislation Updates

    Matthew Clark

    Insights

  • Mary Bagnall writes for FMCG CEO on the recent Thatchers v Aldi court ruling

    Mary Bagnall

    In the Press

  • EU Designs: Upcoming increases in renewal fees and amendments to renewal deadlines

    Quick Reads

  • Mind the Gap Trade Mark

    Insights

  • Navigating the Future: Key trends for Creative and Digital Agencies in 2025

    Rebecca Steer

    Quick Reads

  • Combatting Lookalikes Revisited - clouds lift for brand owners as Thatchers wins its appeal over Aldi copycat cider

    Mary Bagnall

    Insights

  • The Law Society Gazette quotes Mary Bagnall on Aldi’s infringement of Thatchers’ trademark

    Mary Bagnall

    In the Press

  • Why Man City took ‘Super “Dry”’ off its Training Kit

    Nick White

    Quick Reads

  • Cheltenham Cyber Roundtable Insights

    Rebecca Steer

    Quick Reads

  • City AM quotes Mary Bagnall on the Thatchers v Aldi trademark appeal

    Mary Bagnall

    In the Press

  • Charlotte Duly writes for The Law Society Gazette on the Skykick Supreme Court decision and takeaways for trade mark owners

    In the Press

  • "AI Battlefields" Conference - Some Highlights

    Nick White

    Quick Reads

Back to top