Virtual Round Table - Intellectual Property in 2021
20th July 2021
The UPC agreement is an integral part of the project to create a unitary patent covering almost all of the EU. Until it is ratified the unitary patent cannot come into existence.
The judges ruled that because the UPC agreement required a transfer of adjudication powers from Germany to the new court system, a two-thirds majority was required in the Bundestag (German parliament). The ratification however was passed by a simple majority, meaning that it was unconstitutional.
While Germany could re-ratify the UPC agreement (assuming a two-thirds majority can be secured in the German parliament), the political landscape has changed considerably since 2017 – notably because the UK is no longer a member of the EU. This causes several problems:
Therefore, while the German court’s decision might in other circumstances represent only a temporary stumbling block, which in theory is easily cleared by re-ratifying the treaty in the Bundestag, the political reality is that the prospect of a unitary patent for Europe is probably as far off as ever it was.