This morning the German Federal Constitutional Court (BVerfG) published its “preview for the year”, listing the cases which it intends to decide during 2018. The pending “Constitutional Complaint” against German ratification of the Unified Patent Court Agreement is included in the list (item 11 on the agenda of the Second Senate). A final decision during 2018 may therefore be possible.
It is worth noting, however, that several of the items on the list have been carried over from previous years, so it is still possible that the UPC case could slip into 2019 or later, depending on the order in which the cases are heard. It is also notable that the agenda includes a set of four complaints against the European Patent Office; as the EPO is the body entrusted with the grant of Unitary Patents, the Court could potentially decide to rule on these complaints before tackling the UPC complaint.
If, during 2018, the Court rules that the UPC case is inadmissible – as some third parties have argued it should – then there may still be just about enough time for the UPC Agreement to be ratified and brought into force prior to Brexit in March 2019, assuming that the UK also proceeds with ratification. On the other hand, if the Court admits the case for a decision on the merits, the final ruling could well be delayed into 2019 or beyond, especially if any questions are referred to the CJEU for a preliminary ruling. Either way, what will happen after Brexit is currently unknown. Legal and political clarity is now urgently required.