Although the surprise announcement that there will be an early General Election in the UK means that the final stages of the UK’s procedure for ratifying the Unified Patent Court Agreement (UPCA) have temporarily been put on hold, Germany has made significant progress lately.
In March, both houses of the German Parliament approved draft legislation amending German patent law and permitting ratification of the UPCA.There is one further piece of legislation to be approved before Germany can deposit its instrument of ratification with the EU Council. This is the legislation necessary to implement the Protocol on Privileges and Immunities of the Unified Patent Court.
Draft legislation in this regard was approved by the Bundestag (the lower house) on 27 April. Approval by the Bundesrat (the upper house) was expected to occur on 12 May, but this failed to materialise. Instead, the legislation has been listed for discussion in the Bundesrat’s next session on 2 June.
Approval of the final piece of legislation by the Bundesrat is expected to be a formality. After this has been done, both items of legislation must be signed by the German president and government and published in the Federal Law Gazette in order to formally become law.
Formal ratification of the UPCA by Germany and the UK will start the countdown to the Court opening its doors for business. Before this, there will be a Provisional Application Phase allowing various technical and administrative tasks to be performed, such as appointment of judges and finalisation of the Court’s IT systems. This provisional phase can only begin once Germany and the UK both complete their respective legislative procedures, stopping short of formal ratification of the UPCA.
It is widely – if informally – understood that Germany intends to delay formal ratification until after the UK and until the activities of the Provisional Application Phase are nearing completion.
With only a few domestic formalities to go before Germany is in a position to ratify the UPCA, all eyes will be on the UK to make good on its promise to finish passing the legislation through Parliament as soon as possible after the election so that the Provisional Application Phase can begin.