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More trouble for the UPC
14 June 2017 by Dr Matt Barton

Further delay for the Unitary Patent

Executive summary

It is  reported that the German Federal Constitutional Court (BVerfG) has asked the German President not to sign the instruments of ratification of the Unitary Patent package until certain constitutional cases have been decided upon. This means that ratification of the UPC will be further delayed, at least until the cases are decided later this year.

In detail

The Unitary Patent (UP) package - a unitary patent covering most of the EU, and its corresponding unitary court - is already presently on hold. The package still needs to be ratified by both the UK and Germany before it can come into effect. The preparatory committee was hoping that the package would take effect this year, but last week  that estimate was already revised

The UK has, despite Brexit, announced that it still intends to ratify. However whether that is really possible is a political question and will depend on the UK's Brexit negotiations with the EU. Last week's UK general election has not made this situation any clearer.

A serious problem has now arisen in Germany too, where the President has been asked by the BVerfG, and has agreed, not to sign the ratification yet.

There are several complaints pending before the BVerfG in which the compatibility of the UP with the German constitution is called into question due to involvement of the European patent office (EPO). This is because the EPO is the body entrusted with granting future unitary patents but there are concerns about legal protection against decisions taken by the EPO Boards of Appeal, which are the judiciary of the EPO. In particular there are fundamental concerns about the independence of the Boards of Appeal in view of inadequate separation of powers from the executive (the EPO itself).

This situation will now result in a further delay to German ratification until the cases are decided later this year. However if the BVerfG decides that the European Patent Convention is incompatible with the German constitution, due to lack of safeguarding of legal rights, then not only will the Unitary Patent be impossible but also Germany's continued participation in the EPO will be at risk, at least until the independence of the Boards can be properly enshrined.

Comment 

This development is set against a background of conflict between the EPO Boards of Appeal and the EPO executive. The EPO President has put in place a structural reform of the Boards with the stated aim of safeguarding their independence and judicial nature. However the reform has been criticised as doing quite the opposite - for example moving the Boards to a different building to give the appearance of independence, while simultaneously removing security of tenure from the Board members. The German courts have apparently taken notice and the actions of the EPO could now have serious consequences for both the Unitary Patent and the EPO itself.