The European Patent Office demands that the unitary patent system begin operations soon, but the two constitutional appeals against Germany’s Unified Patent Court legislation are unlikely to be decided before the end of this year, and other issues – such as whether Italy should host the division of the Unified Patent Court originally assigned to the United Kingdom – are also as yet unsettled.

“Europe needs the unitary patent to become a reality, probably now more than ever” Antonio Campinos, President of the European Patent Office, told members of the European Parliament on 12 April 2021 at a meeting of the parliamentary Committee on Legal Affairs.

It is uncertain, however, whether the unitary patent will become a reality in 2021. The unitary patent system consists of a patent with unitary validity in 25 EU jurisdictions (all European Union member states except Spain and Croatia), as well as of a supranational court, named Unified Patent Court, with exclusive jurisdiction over unitary patents which will also eventually extend to European patents.

One cannot exist without the other: although unitary patent legislation has been in force since 2013, actual applications cannot be accepted until the Unified Patent Court Agreement (UPCA) enters into force, which will happen only when it is ratified by a certain number of member states, mandatorily including Germany.

Germany’s UPCA ratification process on hold – again

The first attempt made by the German government in 2017 to pass legislation ratifying the UPCA was thwarted in February 2020 when Germany’s Federal Constitutional Court ruled on appeal that the act had been approved by an insufficient number of MPs.

A second ratification act was approved by the German parliament on 18 December 2020, but on the same day two new constitutional appeals were filed against it. One of such appeals requested, inter alia, that the entry into force of the ratification act be delayed pending the appeal itself. In January 2021 the German federal constitutional court asked the federal president not to sign the approved draft into law until further notice. The ratification act has been on hold ever since, and neither of the appeals are listed for a decision in 2021.

It is theoretically possible for the court to decide that the ratification act may be signed pending the appeals, but obviously such a solution would be far from ideal.

Italy’s bid to host the UPC life sciences division

In the meantime, Italy is still supporting its bid to get Milan, which is already home to a local division of the UPC, to host the court’s central division for life sciences originally assigned to London.

Pursuant to the United Kingdom’s withdrawal from both the European Union and the UPCA, the UPC Preparatory Committee decided that Paris and Munich – both of which already host a central division of the UPC – should temporarily share the work of the central division for life sciences.

However Italy has demanded that London’s central division be permanently reassigned according to the rules set forth in the UPCA, and pointed out that under those rules it should be allocated to Italy. The subject was raised again very recently by the new Italian government, led by Mario Draghi, in talks between the ministers of justice of Italy and France; hopefully, further negotiation will lead to a positive outcome for Italy’s bid.

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