Germany’s second attempt at getting a Unified Patent Court Agreement ratification bill quickly through parliament suggests that the German government is ignoring crucial issues raised by Britain’s exit from the European Union and by its disengagement from the UPCA itself.

In June 2020 the German government tabled a new draft ratification law of the Unified Patent Court Agreement (UPCA). The draft law has been submitted for consultation, which ended on 3 July 2020, to an unspecified list of interested parties.

A previous ratification law was annulled by a ruling of the German Federal Constitutional Court’s dated 13 February 2020 (published on 13 March 2020, see here). The court declared the ratification act null and void on the grounds that it amends the German constitution and therefore requires a two-thirds majority for approval, whereas the act had been approved by just 35 MPs. The court did not substantially address the remaining arguments in support of the appeal.

Germany’s new draft ratification law is apparently identical to the one appealed, and the government’s strategy seems to be merely to reach the required two-thirds majority, ignoring both the likelihood of further appeals, and the as yet unaddressed legal conundrum of Brexit’s effects on the UPCA.

United Kingdom set to leave UPCA and unitary patent

On 24 March 2020 the Minister for Science, Research and Innovation of the United Kingdom (UK) formally confirmed, in a letter to the House of Lords (see here) that the UK does not intend to continue participation in the Unitary patent and Unified Patent Court.

The letter explains that participation would be incompatible with the UK government’s approach to negotiations with the European Union, which rules out any alignment of UK law with European Union provisions as well as any jurisdiction in the UK of the Court of Justice of the European Union. However the European Commission has not yet received an official communication from the UK government.

Can Germany still ratify the UPCA?

European Union case law forbids the union’s member states from entering into an agreement with third countries (non-members of the union) if that agreement affects the union’s rules or alters their scope. So can Germany, a European Union member state, legally ratify the UPCA in its current form, which still formally includes the UK? Patrick Breyer, a German member of the European Union parliament, intends to find out.

On 5 May 2020, Mr. Breyer formally requested the European Commission to confirm that Germany no longer has the right to ratify the UPCA, to advise the German government not to ratify the UPCA as it stands and to say whether it would launch an infringement procedure against Germany if it ratified the UPCA in its current form. On 8 June 2020, Mr. Breyer submitted two further questions to the Council of the European Union.

The European Commission’s answer is already overdue, and Mr. Breyer has recently told the press that he plans to take legal action should he receive no answer, or an unsatisfactory one.

Moreover, the Foundation for a Free Information Infrastructure (FFII) published on 15 June 2020 a press release in which it threatens to file a second constitutional appeal should the new German ratification law be approved.

It looks like German government’s plans for a quick ratification of the UPCA might not work quite as swiftly as desired.

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