A Unified Patent Court without the UK or Germany?
As previously reported, the Unified Patent Court (UPC) agreement was ratified by the UK in April last year, but the necessary German ratification was delayed by a constitutional challenge. It was hoped that this would be resolved swiftly so that the UPC could open before the UK’s planned departure from the EU on 29 March 2019. Indeed, the case was listed for consideration by the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) in 2018, but was not ultimately heard last year.
The case (2 BvR 739/17) is again included in this year’s list of cases, and it seems likely that it will be heard relatively soon. This, combined with the latest extension to Article 50, means that there is still a chance that the German government could be in a position to ratify the UPC agreement before the UK leaves the EU. There seems to be no reason why the UK could not play an active role in the UPC while still an EU member state.
However, it is still not entirely clear whether this would have any bearing on the UK’s ability to continue participating in the UPC after formally leaving the EU. It is also not clear whether, given this uncertainty, the German government will delay any ratification until the Brexit process reaches its conclusion, leading to further delays.
It seems to be generally accepted that the UPC and associated Unitary Patent would be more attractive with the UK involved, but opinion is divided about how possible this is given the practical, and perhaps more significantly the political, hurdles that exist.
The above assumes that the German complaint will be dismissed when the case is heard. If it is not, then at best there would probably be further significant delays to the UPC, and at worst Germany’s participation would be in serious doubt. It is difficult to see any future for the UPC without the involvement of either the UK or Germany.