Germany’s ratification of the Unified Patent Court Agreement has been delayed further after the Federal Constitutional Court (Bundesverfassungsgericht, or BVerfG) extended the deadline for submissions from third parties in relation to the constitutional complaint which was filed earlier this year. The UPC Agreement and Unitary Patent system cannot come into force until Germany ratifies the agreement and therefore the system is “on hold” until and unless the BVerfG rules that the Agreement is compliant with the German Constitution.
A total of 27 different organisations, including bodies such as the European Patent Lawyers’ Association and the German Bar Association, are reported to have been invited to comment on the complaint. Originally the BVerfG set a 31 October deadline for comments, but this has now been extended to 31 December at the request of at least some of these parties.
After expiry of the deadline, the BVerfG will first of all decide whether the complaint is admissible. If the complaint is deemed admissible, a decision on the merits will follow. No firm timetable is known yet, but a decision on admissibility is expected in early 2018. If the case is admitted, a decision on the merits is unlikely before the second half of 2018 at the earliest. Given that some of the grounds of complaint include an allegation that the Agreement is contrary to European law, a referral to the ECJ for a preliminary ruling on points of European law cannot be ruled out. If this takes place, a delay until 2019 or even 2020 for the final decision might be expected.