Since the early seventies, European countries have pursued the project of creating a Unitary Patent and a Unified Patent Court (UPC). Success seemed within reach in 2013 when the International Agreement on a Unified Patent Court (UPCA) was concluded and subsequently ratified by several states. However, in 2017 the project came to a grinding halt in the biggest contracting state, Germany, when a single patent practitioner filed a complaint against the national law ratifying the UPCA.
On 20 March 2020, with a 5:3 majority decision, the German Federal Constitutional Court said the Act of the Approval of the UPC Agreement was void.
According to the reasoning, the manner in which the act was passed infringes the complainant in his constitutional rights to democratic representation.
Unitary Patents would have made it possible to get patent protection in up to 26 EU Member States by submitting a single request to the EPO, making the procedure simpler and more cost effective for applicants. Unitary Patents would have removed the need for complex and costly national validation procedures.
The new UPC system, years in the planning but yet to become operational, foresees a Europe-wide court system to ensure that businesses have a streamlined process for litigating European patents through a single court – including new unitary patents.
Though high expectations were placed on the Federal Constitutional Court and its decision, the existing system whereby European patents are enforced separately in each member state will continue for the foreseeable future.
