German ratification of the Unified Patent Court Agreement is void

The German Federal Constitutional Court upheld the constitutional complaint against the German act of ratification of the Unified Patent Court Agreement (UPCA). At the same time, it showed the way to future ratification. The court ruled that the act of ratification was adopted unanimously in the German parliament, but with insufficient quorum.

According to the Tribunal, in the case of the Unified Patent Court (UPC) the Bundestag needs a two-thirds majority, as the ratification of UPCA would entail a substantive amendment to the Constitution.

It is not entirely certain whether this decision means the final end of the Unified Patent Court. The Bundestag can “save” the situation by re-voting the ratification of UPCA, this time by a two-thirds majority. However, this means another substantial delay and impediment to the introduction of a unitary patent system in Europe. Considering all circumstances, this project must be taken into account. Germany is one of the three key Member States that must ratify the Agreement for the Unified Patent Court to become operational.

Three weeks ago, the UK government confirmed that it would no longer participate in the UPC system. The announcement surprised the European patent community. Earlier, Great Britain had suggested that despite Brexit, it would not withdraw from the unitary patent system.