According to reports published on 11 June 2017, the German Federal Constitutional Court has requested the Federal President of Germany to refrain from signing the law that is necessary to ratify the Agreement on a Unified Patent Court (UPC). The president has agreed to comply with this request. The president’s signing is the last step required for a law to come into force after it has already passed both legislative chambers in Germany.
Reasons for the Request
The German Federal Constitutional Court has based its request on account of two challenges to the law ratifying the UPC, namely a constitutional complaint and a parallel request for expedited proceedings filed by the same complainant. The decision to ask the president to postpone the signing, indicates that the Federal Constitutional Court might not view the challenges as outright unsuccessful. The Court has not yet announced a date when its decisions will be issued.
The reasons brought forward in both challenges are unknown. Reports suggest that the challenges are based on concerns that the contemplated proceedings before the UPC might not comply with due process of law. Some voices claim that the decisions of the opposition division of the European Patent Office (EPO) would not be subject to review by state courts, and that the boards of appeal of the EPO would not be sufficiently independent from the administration of the EPO.
A Look Ahead
It is unlikely that the president will sign the law before a decision of the Federal Constitutional Court will have been handed down. Accordingly, the ratification of the UPC in Germany will likely be postponed to an unknown date.
This article was originally published on AllAboutIP – Mayer Brown’s blog on relevant developments in the fields of intellectual property and unfair competition law. For intellectual property-themed videos, Mayer Brown has launched a dedicated channel available here.