Unitary patent is coming: Germany ratifies protocol via EU patent court


On Monday, the federal government deposited the instrument of ratification for the protocol on the provisional application of the Agreement on a Unified Patent Court (UPCA). This is considered to be an important step on the way to building the planned judicial institution. The agreement on the patent court also forms the keystone of the reform of the European patent system, with which the new EU unitary patent, which has been planned for many years, is to be introduced.

So far, 15 signatory states have ratified the UPCA themselves, namely Austria, Belgium, Denmark, France, Luxembourg, Malta, Portugal, Sweden, Finland, Bulgaria, Estonia, Italy, Latvia, Lithuania and the Netherlands. On the basis of these accessions that have already taken place, the convention can come into force once Germany has officially ratified it.

Before that, however, the patent court’s ability to work has to be organizationally established. Among other things, this includes selecting and appointing judges and deciding on secondary legislation such as the rules of procedure. This is to be done on the basis of the ratified protocol on the provisional applicability of the UPCA. If two other states declare their formal approval of the protocol in the next few weeks, it can probably come into force in autumn and the patent court will then emerge as an international organization headquartered in Luxembourg.

The Federal Government does not expect the Convention to come into force until mid-2022 at the earliest. Only then will jurisdiction be transferred to the new instance. Following a veto by the Federal Constitutional Court on the first initiative, the Bundestag passed the approval law for the UPCA with the required two-thirds majority at the second attempt in November. The Karlsruhe judges rejected two urgent motions against the law in the summer, clearing the way for further steps.

“The Unified Patent Court will come”, Federal Minister of Justice Christine Lambrecht (SPD) is pleased about the ongoing development. “For German industry, which holds around 40 percent of all European patents registered from Europe, better protection of their inventions in the European internal market is of particular importance.” Opponents, on the other hand, have long warned that the unified case law could make the controversial software patents easier to enforce.


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