On 15 July 2020 the European Commission published its answer to the questions filed on 5 May 2020 by EuroMP Patrick Breyer, concerning Germany’s second attempt to ratify the Unified Patent Court Agreement (read news item here).

The European Commission’s answer reads as follows:

“The unitary patent will be an effective tool for businesses to protect their inventions on the European market at a competitive price, and the Unified Patent Court will offer the possibility for these businesses to enforce their patents at a European Union level, thereby enhancing legal certainty and reducing costs. It will further boost innovation in Europe, which will be key for the economic recovery following the COVID pandemic.

The Commission is of the view that the withdrawal of the United Kingdom from the European Union does not affect the ratification process of the Unified Patent Court Agreement in Germany. The United Kingdom signed and ratified the United Patent Court Agreement when it was still an EU Member State and in its capacity of Member State. The United Kingdom has ceased to be an EU Member State and, therefore, will not participate in the unitary patent system after the end of the transition period, given that participation in that system, including the Unified Patent Court Agreement, is only open to EU Member States.

The Commission would welcome a swift ratification of the Unified Patent Court Agreement by Germany.”

Meanwhile, on 8 June 2020 Mr. Breyer also filed the two following questions, this time addressed to the European Council, which are still awaiting an answer:

“The Agreement on the Unified Patent Court (UPCA) has been ratified by 15 Member States and the United Kingdom, but will not come into force until it has been ratified by Germany. According to EU case law (Court of Justice of the European Union Case 22/70), Member States must not enter into agreements with third countries that affect EU rules or alter their scope. The UK is now a ‘third country’ in the meaning of Article 216 of the Treaty on the Functioning of the European Union. While the EU may jointly assume obligations with the UK with respect to patent litigation, Member States no longer have a right to do so.

1 Does the Council agree that Germany no longer has the right to ratify the UPCA?

2 Has the future of the UPCA been discussed by the Council?”