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The end of the UPC as we know it?

March 2020

The German Federal Constitutional Court has issued a decision (in German) which ruled the German UPCA Ratification Law to be unconstitutional and void.  However, the court dismissed the second set of arguments (violation of fundamental democratic rights and the principle of separation of powers) as inadmissible.

So while a significant blow to progress of the UPC, it is possible that the UPC bill could be presented once more to the Bundestag, where the present Government might be able to get the required two-thirds majority.  Of course, this will take a while to be tabled in view of the present global COVID-19 crisis and also raises the possibility of whether the same complaint could be brought again but focussed on more substantive aspects like transfer of sovereign rights, issues with the EPO, judges, to name but a few.  Furthermore, given that the UK has indicated it will no longer seek to participate in unitary patent and UPC, the agreement in its current form would need significant amendment before it could again be taken through the German constitutional process.

The UPC prep committee has commented that “Despite the fact that the judgement will result in further delay the preparatory work will continue, while the judgment and the way forward is further analysed”.  Less surprisingly, they also stated that “It should be acknowledged that all colleagues working for the Preparatory Committee are facing unprecedented challenges with the COVID-19 outbreak but work will move forward using all available resources to keep the momentum”.

This update was prepared by HGF Partner Rachel Fetches.  If you would like further advice on this or any other matter, please contact Rachel. Alternatively, you can contact your usual HGF representative or visit our Contact page to get in touch with your nearest HGF office.

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