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The Unified Patent Court and the Unitary Patent

Navigating the new EU patent system

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No plain sailing for the UPC – German Court Upholds Constitutional Challenge

The Bundesverfassungsgericht (German Federal Constitutional Court) has this morning announced that it has found (by a majority decision) that the Act of the Bundestag which sought to approve and implement the Unified Patent Court in Germany is void. The Court indicated that the Act would amend the German constitution in substantive terms, but had not been approved in the Bundestag with the two-thirds majority necessary for such amendments.

In its press release, the Court stated that “in order to safeguard their right to influence the process of European integration by democratic means, this, in principle, also entails the right of citizens that sovereign powers be conferred only in the ways provided for by the Basic Law. An act of approval to an international treaty that has been adopted in violation thereof cannot provide democratic legitimation for the exercise of public authority by the EU or any other international institution supplementary to or otherwise closely tied to the EU.”

https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-020.html

The decision leads to further uncertainty as to if and when the UPC will come into effect. It does not appear, however, that the reasoning precludes the UPC being adopted by Germany in a constitutionally correct manner. More analysis will follow.

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The Unified Patent Court (UPC) and the Unitary Patent (UP)

Now the UK has ratified the UPC Agreement and more than 12 other Contracting states have also ratified, Germany's ratification is all that stands in the way of the UPC becoming a reality.

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