Almost unnoticed by the public, the “unitary patent” project cleared another hurdle on December 18, 2020: The German Bundesrat, the representation of the federal states in the German legislative process, gave its approval.

Theoretically, things could happen very quickly now:

The law is often taken to the Federal President on the very day it is approved. He then signs it as soon as he is next in the house. The clarification of constitutionality is typically carried out before the vote in the Federal Council. The necessary publication and deposit would also be possible before the end of the year…. The political will for speed seems to be there: The unitary patent is already being promoted as an instrument to promote the economy during and after the corona crisis. And the European Patent Office also announced in summer 2020 that the organization and technology are in place.

So will we have the unitary patent on April 1, 2021?

In all likelihood not: a constitutional complaint is still pending before the German Federal Constitutional Court and, unlike the complaint that has already been decided, this time it concerns points of substance.

If the President of the Swiss Confederation assumes that the law requires closer scrutiny due to the pending proceedings and the court demands substantive changes in its ruling, the unitary patent is likely to remain a dream for some time to come: This would mean renegotiating the treaties and many national ratification procedures.

However, the German government and the EPO appear to be optimistic about the outcome of the proceedings: the draft of the law that has now been adopted was sent to interested parties for comment on June 10, 2020, despite (or precisely because?) the German Bundestag had decided just a few weeks earlier, on April 22, 2020, to participate as a party in the still open proceedings. The EPO cites “early 2022” as the expected start date.

On December 28, 2020, the first laws on the Federal Council’s agenda of December 18, 2020 were published. The law that would allow Germany to ratify the Agreement on a Unified Patent Court has not yet been included: So the Federal President seems to be in less of a hurry. Will he wait for the ruling?

I personally assume that the EPO date will come true and that we will be able to use the unitary patent from the beginning of 2022: As the pending judgment was already announced for 2020, it should be announced in the not too distant future. As the legal text has not changed, the emergence of new Lawsuits against the law also seems unlikely to me.

What does this mean for owners of a European Patent Application?

Contact us if you are interested in a unitary patent in principle.

We cannot promise you anything. However, if it is likely to come into force, we can try to delay the Examination Proceedings so that you have a choice when the patent is granted. It is the date of grant that determines whether or not a Unitary Patent can be applied for.