Accepting cookies on this website

We use cookies for various purposes, among others in order to improve your use and your experience of our homepage.


The Unified Patent Court – the never-ending story

09. februar 2018

The Unified Patent Court (UPC) has been trapped in a web of politics and law, and that is why the court is not yet in motion. The date has not yet been set for when we can expect to see the first decisions of the UPC.

In the beginning of 2017, the Unified Patent Court (UPC) was expected to begin its work by the fourth quarter of that same year at the latest.

Now, in the beginning of 2018, the status is that the court has not yet been set in motion. The reason is that two of the three major countries, which are to ratify the UPC Agreement, are yet to do so. France is the only of the major countries – those issuing the most patents – having ratified the Agreement, whereas the United Kingdom and Germany still have failed to do so for a variety of reasons.

In the United Kingdom, the fact that the country chose to leave the European Union in the 2016 referendum has left the politicians on unstable ground. The ratification of the UPC Agreement is part of the game. In Germany, a constitutional legal dispute is the obstacle.

"The only thing that is certain is that it is a bad idea to try to predict when the UPC will actually see the light of day. However, I hardly think that the UPC issue is at the top of the to-do list of British government. With regard to Germany, we have to wait and see how and how quickly the constitutional court handles the challenge," says CEO and partner of Chas. Hude Marianne Johansen.

Legal subtlety
In Germany, a citizen has complained about the whole process in relation to the UPC which the citizen finds contrary to the German constitution and EU legislation on a number of issues. The German Constitutional Court in Karlsruhe has found the complaint to be of such validity that it has instructed the German government to postpone ratification of the UPC until the court has made a ruling on the complaint. The complaint falls into four parts:

Validity of the decision itself – According to the complaint, there were not enough parliamentarians present to decide on the issue of relinquishment of sovereignty in the German parliament when the vote was cast for the Unified Patent Court.

Democratic deficiency – The complainant considers the construction of the UPC to be democratically deficient. This is not specified in detail.

Complete independence is not guaranteed by the UPC – The judges at the patent court are employed for a fixed time period with the possibility of extension. Accordingly, the complainant believes that the judges may have a dependency relationship with the political system for career reasons.

Contrary to EU legislation – The complainant believes that the UPC is contrary to EU legislation. This is not specified in detail.

The constitutional court in Karlsruhe is the supreme court in terms of constitutional issues and its rulings must be followed.

Monitoring the situation
The current game surrounding the UPC does not exactly make it easier to be a patent-seeking company.

"Currently, companies must navigate between the patent practice as we know it today and new rules that we do not know when will be executed, or if they will be executed," explains Marianne Johansen.

Obviously, Chas. Hude follow the development closely – and we are ready to advise you on all relevant questions about the UPC and what you should be especially aware of.

Subscribe to our newsletter here