New attempt to establish Unified Patent Court

Michael RainerManaging Partner, MTR Rechtsanwälte

There is a desire for the process of issuing patents within the EU to be made more efficient. The idea of establishing a Unified Patent Court is seen as a positive step in this direction. The Bundesministerium der Justiz und für Verbraucherschutz (BMJV) – Germany´s Federal Ministry of Justice and Consumer Protection – has submitted a new bill as part of a second attempt to do so. 

The plan is for there to be a Unified Patent Court to deal with disputes concerning the infringement and validity of European patents, with courts of first instance established in the Members States and a court of appeal set up in Luxembourg. A broad consensus has emerged in Germany in favor of participating in the Agreement on a Unified Patent Court, with the German Bundestag having already passed legislation designed to enact the agreement. Yet in March of 2020, the Bundesverfassungsgericht – Germany’s Federal Constitutional Court – decided to throw a spanner in the works (Az.: 2 BvR 739/17). 

We at the commercial law firm MTR Rechtsanwälte can report that the court declared the legislation null and void, ruling that despite being passed unanimously by the Bundestag, the mere 35 members of Germany´s lower house of parliament present at the vote did not satisfy the requirement for there to be a two-thirds majority.

 The BMJV is now making a second go of it, introducing a new bill on June 10, 2020. According to the Ministry, the proposal for remedying the procedural irregularity admonished by the Bundesverfassungsgericht is for the legislation designed to enact the international agreement to be passed by the Bundestag and Bundesrat with the required majority.

The Agreement on a Unified Patent Court has since been ratified by 15 EU Member States. In order for it to come into force, it must still be approved by Germany.

 Should the agreement enter into force, the Unified Patent Court will adjudicate on the infringement and validity both of European patents under the terms of the European Patent Convention and European patents with unitary effect (“Unitary Patents”). The plan is for courts of first instance to be established in Germany in Düsseldorf, Hamburg, Mannheim, and Munich.

In this way, the process of issuing patents in the EU is supposed to become more efficient. While it has up till now been possible for decisions on patent applications to be taken centrally by the European Patent Office, the patents still need to be approved by each EU Member State in order for them to become effective. The aim is now for the European Patent Office to be able to issue Unitary Patents that apply automatically throughout the EU. The reforms also include the establishment of a Unified Patent Court.

Lawyers with experience in the field of IP law can advise on issues relating to patents.


Contributing Advisors

Marc KlaasLawyer (Rechtsanwalt), MTR Rechtsanwälte