German Court will publish decision on legality of UPC on 20 March 2020

Launch of the Unified Patent Court or UPC, the new international court for patent disputes, depends on this decision of the German Federal Constitutional Court and so it has been eagerly awaited for many months. Yesterday's announcement comes as something of a surprise even though the decision had been promised early this year.

The original complaint was filed by a German individual in 2017. The complaint is believed to be based on a number of arguments that the UPC Agreement and/or UPC:

• is incompatible with EU law;
• have not followed the proper procedures to transfer power to the UPC;
• violate certain democratic rights; and
• compromise the judiciary’s independence.

If, as expected, the German Constitutional Court dismisses the complaint on Friday, Germany will ratify the Provisional Application Protocol which will set the clock ticking for ratification of the Agreement in about 9 months and the UPC opening 3 months later. Germany is the last of the three signatories (France, Germany and the UK – being the countries with the most European patents) required to ratify the Agreement before the UPC can come into existence. However, given the UK Government’s recent decision to withdraw from the UPC, some amendment of the UPC Agreement and further preparations will be required before the court can open for business. The Preparatory Committee announced earlier this month that once Germany is in a position to ratify the UPC Agreement, arrangements will be made to deal with the practical implications of the UK‘s departure. These will be published in due course.