The Unified Patent Court - status

A new announcement from the German government raises further doubts as to when the Unified Patent Court (UPC) may enter into force. The German government believes that the uncertainty about the legal consequences of Brexit and the implications to a European patent reform should be examined more closely. The UPC is now expected to enter into force during 2020 at the earliest.

The Unified Patent Court (UPC) was planned to enter into force in 2017. It is the intention that, in future, UPC is to deal with matters relating to European patents as well as matters relating to a new European single patent. The single patent will be introduced together with the UPC.

However, the entry into force and commencement of the UPC is still awaiting Germany's ratification of the agreement. It has been put on hold pending legal proceedings before the German Federal Constitutional Court ("Bundesverfassungsgericht", BVerfG"). The case is on the Court's agenda for 2019 but it is uncertain whether it will actually make a ruling in the case this year.

However, the German government announced in a reply to the German Parliament that the question concerning the implications of Brexit on a European patent reform will be an important factor in the continued implementation process, and that the actual and legal consequences of Brexit must be examined and harmonised on a European level. These deliberations have not been concluded, not least because important factors in relation to Brexit are still unknown.

Accordingly, it must be expected that if the German Federal Constitutional Court should make a decision prior to Brexit, German will not ratify the agreement until the consequences of Brexit are known and the implications have been discussed on a European level. It must be expected to take some time, and consequently the UPC system cannot be expected to enter into force until 2020 at the earliest.

It is still unclear whether the United Kingdom can be a member of the UPC system after Brexit. It will depend both on the conditions for the withdrawal and on the political will of the UPC Member States. It has been claimed from some quarters that only EU Member States can be members of the system. Others have claimed that this is a problem that can be overcome. The debate has been mentioned several times. See Plesner's previous Insight:
 "Max Planck Institute raises question about the lawfulness of the Unified Patent Court"

It is Plesner's view that the question of the lawfulness of the UPC system should be clarified before the system enters into force. Otherwise, the users cannot rely on the decisions that will be made by the UPC.

In June 2019, the committee in charge of the preparation of the system decided to reopen the recruitment process for judges for the UPC, see here.

However, sources close to the committee have stated that this has been planned for a long time to ensure that the candidates on the list were still interested and that new qualified candidates would be able to apply. Therefore, this cannot be deemed to indicate impending commencement of the UPC.

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