The German government wants to respond to the negative ruling of its constitutional court with a “quick strike”. In March 2020, the court ruled that the first ratification of the
For a long time, companies have wanted a Europe-wide Patents. However, despite tireless work on compromises, this wish has not yet become a reality. There have also been two setbacks this year. The UK has definitively withdrawn its earlier ratification in order to implement BREXIT. This means that one of the central pillars of the treaty has been removed. As if that were not enough, the German Federal Constitutional Court also declared the German ratification invalid because the parliamentary vote had not been carried out with the necessary two-thirds majority.
The government wants to remedy the previous shortcoming by holding a new referendum with a large turnout. The supporters are aware that there are still provisions in the treaty that assume the UK’s participation. In order to avoid having to go back to the complex negotiation situation, they take the view that the treaty can simply be adapted to the new situation by way of interpretation. This would mean that the Unified Patent Court would finally be a done deal.
However, the battle for the new court is unlikely to be that easy to win.
Even if, on the surface, the ruling of the Federal Constitutional Court (BVerfG) can be overcome by a second vote with the necessary presence and majority of parliamentarians, there are also deeper constitutional problems. They relate to the way in which judges are appointed and re-elected to the Unified Patent Court. These problems had already been addressed in the constitutional complaint filed in 2017. However, the BVerfG had not (yet) commented on these arguments. If a new Lawsuit were to be filed, however, it would then have to assess these issues. And it would be premature to assume today that the court would decide in favor of the agreement without further ado.
The hope that the treaty will not have to be renegotiated because of BREXIT, but merely interpreted, is hardly realistic. After all, the Offices of the Court’s central chambers are not the result of a mathematical calculation, but of a final political negotiation. Italy has submitted its application for the vacant court seat in Londen. A political decision on this has not yet been made by the contracting states.
Finally, without the United Kingdom, the financial benefits of the agreement and consequently also the assessment of the patent fees for the unitary patent will have to be reassessed.
It may still be some time before the first European Patents with unitary effect are enforced before a central court.