Two appeals have been filed with the German Federal Constitutional Court against the second draft ratification law of the Unified Patent Court Agreement on the day of its approval by the upper chamber of the German Parliament; meanwhile crucial legal issues, triggered by the United Kingdom’s decision to withdraw from the court, remain unaddressed.

On 18 December 2020 Germany’s upper chamber of parliament (Bundesrat) approved the draft law required for ratification of the Unified Patent Court Agreement (UPCA), which had already been passed by the lower chamber (Bundestag). On the same day the German Federal Constitutional Court received two appeals against the act.

A previous ratification act was annulled by a ruling of the German Federal Constitutional Court dated 13 February 2020 (published on 13 March 2020, read more here) in an appeal filed by a German lawyer.

The court declared the ratification act null and void on the grounds that it required a two-thirds majority for approval, whereas the act had been approved by a mere 35 MPs.

The second draft law has been approved by more than the required two-thirds majority of parliament members.

The identity of the plaintiffs in the two new appeals has not been disclosed. A second constitutional complaint against the new German ratification law had been in fact threatened by the Foundation for a Free Information Infrastructure, which actively raised funds for this purpose (see press release). It is important to note, to this regard, that the Federal Constitutional Court’s decision of 13 February 2020 did not deal with several of the appeal’s supporting arguments.

It is still too early to know what the effect of the new appeals will be on the finalisation of the draft ratification law.

Adding to the uncertainty, the effects of the United Kingdom’s withdrawal from the UPCA on Germany’s right to ratify the agreement, as well as on the future of the court in general, have not yet been fully addressed. Experts have expressed doubts as to how the UPCA can enter into force unamended after the withdrawal of one of the original signatory states designated to host a central division of the court on its territory.

Two questions on the subject, submitted to the Council of the European Union by Patrick Breyer, a German member of the European Union Parliament, were answered as follows on 30 November 2020: “The withdrawal of the United Kingdom from the Union does not affect the ongoing ratification process of the UPCA in Germany. The UK has ceased to be an EU Member State, and therefore will not participate in the unitary patent system. The UK has withdrawn its ratification of the UPCA. The future of the UPCA has not been discussed by the Council.” Mr. Breyer had previously submitted questions concerning the UPCA to the European Commission (read more here).

We will be reporting on developments concerning the new appeals. But it also remains be seen whether bringing the Unified Patent Court into operation without a full clarification concerning the legal effects of the United Kingdom’s withdrawal could leave uncertainty regarding the use of the Unitary Patent system and the Unified Patent Court.

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