The UPC train is back on track, and with the new German ruling rejecting to put the ratification on hold, we are one step closer to joint enforcement and invalidation of European patents in all UPC Contracting Member States in one trial.
This Friday, the German Federal Constitutional Court, "Bundesverfassungsgericht" ("BVerfG") declared the German ratification of the agreement on the Unified Patent Court (UPC) unconstitutional. It means that for the present time Germany's ratification of the agreement has been postponed for an indefinite period. As Germany's ratification is necessary for the UPC agreement to enter into force, the entering into force of the system has also been postponed for an indefinite period.
The UK has announced that it does not wish to participate in the Unified Patent Court (UPC) This will solve a number of problems but will at the same time create new ones.
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.
Brexit is imminent, and it is still not clear whether the UK and the EU will manage to secure a Brexit agreement prior to 29 March 2019, when according to the plans the UK leaves the EU. Consequently, to address the uncertainties, the UK government has published guidance on the legal rights of the patent holder in case the parties do not reach an agreement. In general, the patent holders can breathe again; in case of a no-deal scenario, the rules and systems will basically be the same as now.
The Munich-based Max Planck Institute recently published a comprehensive report addressing the issue of whether the Unified Patent Court (UPC) would be incompatible with EU law post Brexit. The report concluded that the UK remaining in the UPC system post Brexit would be incompatible with EU law.
The UK has recently ratified the agreement on a unified patent court (the UPC Agreement). The UK is one of the three countries that have to ratify the UPC Agreement before it can enter into force. Following the UK’s ratification, only Germany’s ratification remains outstanding before the UPC Agreement can enter into force.
Plesner has just taken part in a large European mock trial concerning patent infringement. The mock trial was part of the European patent judges' preparations for the future Unified Patent Court (UPC).