Posted by Laura Ercoli on Thursday July 15th, 2021

German Unified Patent Court legislation may proceed, says Constitutional Court

Germany’s Federal Constitutional Court has rejected two requests for an interim injunction against the country’s second ratification law of the Unified Patent Court Agreement.

Germany’s Federal Constitutional Court (the court) has rejected two requests for an interim injunction against the second act of approval of the German law ratifying the Unified Patent Court Agreement (UPCA).tribunale unificato brevetti Germania

In February 2020 the court had, on appeal, struck down Germany’s first ratification act, declaring it null and void.

The German government proceeded swiftly to approve a second law, which was promptly met by two further constitutional appeals, filed at the end of December 2020 respectively by Ingve Stjerna, a German attorney at law, and by the Foundation for a Free Information Infrastructure (FFI), an association.

The court’s order (available here in German only), which concerns solely the appeals’ requests for interim injunctions, was issued on 23 June, and published on 9 July, 2021.

The court’s press release explains that both requests are inadmissible, on the ground that the complainants failed to sufficiently assert and substantiate a possible violation of their fundamental rights.

In particular, the court points out that the complainants failed to demonstrate why and how the UPCA, in its organisational structuring of the Unified Patent Court and in the legal status afforded judges, could violate the principle of the rule of law enshrined in the German Basic Law in a manner that would also encroach upon the principle of democracy. Demonstrating an encroachment upon the principle of democracy is necessary given that it is this principle alone, also enshrined in the German Basic Law, that gives rise to the individual right of democratic self-determination that can be invoked by citizens.

Mr. Stjerna immediately published a comment on the court’s order, which to him “does not come as a surprise. Already the first UPCA decision shows that [the court’s] considerations are primarily politically dominated and that legal issues play at best a subordinate role. This is a necessary consequence of the close ties between the [court] judges and party politics […] After the decision, also the main proceedings on the UPCA are now likely to be unsuccessful. The conclusion of the German UPCA ratification, which can now be expected shortly, will cause a binding effect under international law which cannot easily be removed. This also limits the possibilities of further legal action against the Agreement itself.”

The Chairman of the Unified Patent Court’s Preparatory Committee has welcomed the order as a positive development, as has the European Patent Office; however no official timeline has been yet published for the UPCA to come into force.

It must be noted that Germany’s ratification of the UPCA was not the only problem holding back the inauguration of the Unified Patent Court. The United Kingdom’s decision to withdraw from the court is still a major issue, since it could mean that the UPCA must be amended; it is also a practical one, as no definitive decision has yet been taken as to which country is to host the court’s central division originally assigned to London.


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