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The Unified Patent Court and the Unitary Patent

Navigating the new EU patent system

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WHAT’S NEXT FOR THE UPC PROJECT? OUR ANALYSIS FOLLOWING THE GERMAN FEDERAL CONSTITUTIONAL COURT DECISION

The Bundesverfassungsgericht (the German Federal Constitutional Court) has released its long-awaited ruling on the complaint against the German ratification of the UPC Agreement. It has found, by 5:3 majority, that the Act by which Germany was to accede to the UPC Agreement is void, because it was not passed with the required parliamentary majority. Without Germany’s ratification, the UPC Agreement cannot come into force. What is likely to happen next, and when?

In theory, the Consitutional Court’s objection could simply be overcome by getting the required parliamentary majority for the Act on a second attempt. The Bundestag (the German federal parliament) is still sitting, despite the ongoing Covid-19 crisis. Further, on 26 March 2020, the Federal Justice Minister at the Bundestag said that the Federal Government “will carefully evaluate the decision of the Federal Constitutional Court and examine possibilities to remedy the identified lack of form before the end of this legislative period” (that period runs until approximately October to December 2021).

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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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