Details ratification complaint revealed by German Court

September 18, 2017

The German Constitutional Court has released details about the complaint of the UPC Agreement posing a breach of the constitution, which is currently delaying the ratification process of the Unitary Patent.

Earlier this summer the ratification process in Germany was stalled after a complaint was filed at the Bundesverfassungsgericht (Constitutional Court) claiming certain aspects of the UPC might be in breach of the German constitution.

Even though German parliament voted earlier this year to ratify the UPC Agreement, The President decided to suspend the ratification process until a decision on the complaint is made.

The nature of the complaint remained vague until now, as the Court has released the four grounds on which the complaints are made. Each ground relates back to the constitution and question whether the reforms required to implement the Unitary Patent and Unified Patent Court are in breach of this legal basis.

The points are as follows:

  • Was the necessary majority reached in parliament to transfer sovereign rights, in this case the judiciary of patent litigation, from Germany to the UPC?
  • Are regulatory powers of the Organs of the UPC in breach of the constitution?
  • Are the judges of the UPC sufficiently independent and legitimate, as described within German law?
  • Is the UPC reconcilable with EU law?

It is still unknown when a decision on the matter will be made. In the meantime Germany has also put a stop to hiring judges for the German department of the UPC in Munich.

A detailed discussion of these grounds was published by legal news source Out-Law. Here Munich-based patent law expert Dr. Michael Schneider states that the complexity of the case is likely to result in a significant delay, and could even entirely jeopardize, the German ratification of the UPC Agreement.

“Proceedings are not likely to just take a couple of months,” Schneider states. “This has obvious ramifications for the timeframe involved for the new unitary patent and UPC system to become operational.”

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