New setback to the system of unitary patent

Monday, 20 of April of 2020

After thedeparture of the United Kingdom from the European Union, the Unitary Patent project is again reeling after the decision of the German Constitutional Court in which it has been ruled that the approval of the Unitary Patent Court Agreement is null and void and therefore without effect, since it was not approved by the required parliamentary majority provided for in Article 23 of the Basic Law of the Federal Republic of Germany (hereinafter referred to as GG), that is, two-thirds of the House.

Article 1 of the UPC Agreement provides that "A Unified Patent Court shall be established for the settlement of disputes relating to European patents and European patents with unitary effect". According to the German Constitutional Court, this constitutes a transfer of the awarding authorities, which affects the constitutional rights of the German population.

According to the Constitutional Court, the aspects of the ATUP that conflict with the German Constitution are as follows:

1.The Act of Approval confers judicial functions to a supranational court and sets out that this court has exclusive competence to decide on certain legal disputes. Additionally, the Agreement makes the decisions and orders of the Unified Patent Court being enforceable in any Contracting Member State.
2.The Agreement is supplementary to or otherwise closely tied to the European Union’s integration agenda (Integration program) and effectively replaces provisions that did not achieve the majorities necessary to be adopted as EU law.
3.The Act of Approval is subject to the requirements in Art. 23(1) third sentence in conjunction with Art. 79(2) GG, since it effectively amends the Constitution in substantive terms.
4.The Act of Approval had to be adopted by a qualified majority pursuant to Art. 79(2) GG. In view of the particular importance of the majority requirement for the integrity of the Constitution and the democratic legitimation of interferences with the constitutional order, a law cannot be enacted when it does not achieve this majority. Thus, the Bundestag (German Federal Parliament) did not effectively pass the Act of Approval and it is void.

Although this obstacle can clearly be overcome, it will involve further negotiations to achieve the majority required by the Constitutional Court, something which is obviously not going to be easy and may take several years to achieve the Unitary European Patent project.

This constitutional setback in Germany, together with the fact that, as we have indicated previously, the United Kingdom announced that it would no longer participate in its development, means that Italy will come into play as the next largest country in terms of number of patents, which could put it in the position of the United Kingdom as the Member State whose ratification is essential for the entry into force of the agreement and as the venue of the third section of the central division of the TUP.

We must therefore wait for these new negotiations to be resumed before we know whether the unitary patent will finally be able to be issued or if it will remain a mere project.

Spain, as we know, is not participating in this project because of the refusal of the European institutions to consider Spanish as an official language.