‘German Court might not decide on UPC before 2020’

November 26, 2017

Chances that the German Constitutional Court will quickly take a decision on the complaint filed against the instalment of Unified Patent Court are slim. This is the outcome of an analysis made by JUVE Patent.

The German Constitutional Court seems to be taking its dear time, is the analysis of the patent blog. A procedure which was supposed to take months, might now delay the coming to existence of the UPC for years.

Ulrich Karpenstein, an expert on German Constitutional Court, estimates that the decision of the Court has a long road ahead. First all opinions on the complaint that the court has asked for, from 27 institutions in total, need to be received and processed.

In October the Court extended the deadline for institutions to send in submissions on the claim that installation of the Unified Patent Court in Germany would be in conflict with the German Constitution. Institutions now have until the 31st of December to respond.

After these submissions have been received and read, it is up to the judges to decide whether the complaint is admissible and will go to court. “If it comes to that, we can’t expect a ruling before 2020,” says Karpenstein, a constitutional and European lawyer. Without a hearing, a ruling can be expected by late 2018 or early 2019, he estimates.

This timeline is a blow to those anticipating a rapid start of the UPC and the Unitary Patent. The German complaint, made by German lawyer Ingve Stjerna, came very unexpected to most and was initially estimated to be resolved within a matter of months.

Participating member states have recently taken increasingly more steps to enable the smooth instalment of the UPC. Now, however, Germany seems to be dragging the entire process to a near halt. Without Germany, the UPC cannot come to existence according to its current form. And the wait for Germany, it seems, might be taking years.