May 6, 2021

Double Blow To The EU’s Long-Delayed Unified Patent Court, But Supporters Unlikely To Give Up

Remember the EU’s unitary patent plan? No surprise if you don’t — attempts to create a unitary patent system across the region have been dragging on for decades. Back in 2012, Techdirt noted that the European Parliament had finally approved the plan to set up a new Unified Patent Court (UPC) for the EU, but it still hasn’t come to fruition. Recently, the scheme has been dealt two major blows that are likely to delay it further, even if they don’t kill it off entirely.

The first concerns the UK. It’s one of the three nations that had to sign up to the UPC agreement for it to come into force. A big question was whether it could or would do so after brexit. The answer turns out to be “no”. The second problem comes from Germany, where the country’s constitutional court has ruled as follows:

The Act of Approval to the Agreement on a Unified Patent Court (“the Act of Approval”) to confer sovereign powers on the Unified Patent Court is void. In its outcome, it amends the [German] Constitution in substantive terms, though it has not been approved by the Bundestag with the required two-thirds majority.

However, it’s possible that can be solved by the Bundestag — German’s parliament — holding another vote which does attain the two-thirds majority. There is likely to be pressure to do so because elsewhere the ruling by Germany’s constitutional court (full translation from is helpful to supporters of the UPC, for reasons explained by The Register:

the German Constitutional Court effectively rejected the other arguments against the UPC’s validity. In essence, they were: that because the UK is exiting the EU that the UPC is no longer valid because the UK was one of three compulsory signatories to it (the other two being France and Germany); and that the European Patent Office (EPO) is insufficiently independent because of “reforms” made by its former president Benoit Battistelli that concentrated power in his hands.

Importantly, the first point means the refusal of the UK to sign up is not regarded as an issue now that it has left the EU. As Florian Mueller writes on his blog: “there is widespread consensus that re-ratification (subsequently to renegotiation) is a question of when, not if.” Although agrees the patent industry will push hard to get the UPC implemented, it notes there are yet more bumps in that particular road:

the German Constitutional Court still have to decide soon over 4 other complaints, where complainants have raised the issue that the European Patent Office (EPO) cannot be brought to court for maladministration, in breach of the “rule of law” principle. If the court finds the EPO not in line with fundamental rights, this might have a bigger impact over the current system.

This point relates to the central role that will be played by the EPO in issuing the new unitary patents, valid across the EU. The EPO has long been a controversial institution: it is not part of the EU, its premises enjoy extraterritoriality, and its executives are granted diplomatic immunity that effectively places them outside the law. If allegations of maladministration cannot be brought to EU courts, that seems like a recipe for disaster. Irrespective of those particular questions, The Register article raises a more fundamental one: is it really worth bothering with a plan that was born decades ago? Both the unitary patent and UPC reflect a very different world from the one we now inhabit, which no longer regards more powerful patents as an obvious blessing.

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