Bundestag paves way for the Unified European Patent Court
On Thursday, November 26, 2020, the Bundestag approved the Federal Government's draft law on the Convention of February 19, 2013 on a Unified Patent Court.
The Convention has now been ratified by 16 signatory states including France and the United Kingdom. Only ratification by the Federal Republic of Germany was still required for its entry into force.
According to the draft, the Act contains the consent to the Convention and the Protocol to the Convention pursuant to Article 59(2), first sentence, of the German Constitution, taking into account the qualified majority according to Article 23(1), third sentence, in conjunction with Article 79(2) of the German Constitution. According to the draft, the Convention constitutes the cornerstone of the reform of the European patent system.
Details of the Convention
The Unified Patent Court as an international organization based in Luxembourg consists of a Court of First Instance, a Court of Appeal and a Registry (Article 6(1) of the Convention). The Court of First Instance comprises a central chamber and local and regional chambers (Article 7(1) of the Convention).
In Germany, a division of the central chamber in Munich and a local chamber each in Düsseldorf, Hamburg, Mannheim and Munich are established.
The aim of the Convention is to ensure that businesses will soon be able to obtain protection for inventions more easily and at lower cost throughout the EU. It will also make access to patent protection easier and prevent multiple litigation in different Member States.
Previous legislative procedure
The approval on November 26, 2020 was the second time that the Bundestag voted on the draft law. In 2017, Parliament had already approved the draft at a late hour once without any dissenting votes or abstentions. At that time, however, only 38 of over 630 elected members of parliament were present at the decision. As a result, the German Federal Constitutional Court declared the law null.
Despite the agreement now reached, there is still dubiety about the Convention. In particular, doubts remain about the planned site in London due to the Brexit. According to the Convention, part of the jurisdiction will be in London. However, with the Brexit, the UK has withdrawn from the whole system of the unitary patent. Furthermore, relevant agreements are in fact only open to EU Member States.
Since the draft law does not deal with such matters, the Patent Court still appears to be open to challenge. However, there are also voices that the London issue and alternatives can still be decided once the treaty has been signed by all the necessary parties.
The near future
New constitutional complaints have already been announced if the Bundesrat gives its final approval, which is planned for December 18, 2020.
Despite the second approval of the Bundestag, details remain open. Moreover, further resistance in the form of constitutional complaints is expected, which could further delay the start of the work of the Unified Patent Court.
As usual, we will keep you informed in the usual manner and inform our clients at an early stage about possible effects or chances due to further developments regarding the Unified European Patent Court.