The latest episode in the efforts to obtain a single European patent and patent court to cover (most of) the countries in the European Union has overcome its latest hurdle with the decision of the German Federal Constitutional Court (Bundesverfassungsgericht) to reject the request for an interim injunction to stop the German President from signing the law ratifying the necessary Agreements. This was the second attempt at stopping the process. The complainants had been successful the first time around and the law was sent back to the German Parliament (Bundestag) for modification. The second attempt at blocking the amended law was however unsuccessful. The court still has to make a final decision, but it is unlikely to change its mind.
It is expected that Germany will now ratify the protocol on the provisional application of the agreements in autumn, presumably after the federal elections in September. This means that, according to Alexander Ramsay, the head of the Preparatory Committee that the Unified Patent Court (UPC) could be running in late 2022 or early 2023.
There are still some issues to be sorted out – for example, where will the pharmaceutical division of the court be based? This was initially supposed to be in London. The exit of the UK from the European Union means that another location has to be found. One suggested location is Milan.
The new system will not only affect pending patent applications but also existing European patents which have been validated in EU member states, such as France or Germany, and patent applicants and proprietors will need to start planning now. The transition arrangements are quite complicated. Some holders of patents may wish to opt-out of the new system and maintain the existing arrangements of a bundle of separate national patents. Other patent applicants will be relieved that they no longer have to individually validate patents in different national countries, saving time and money.
Patent and technology licenses will also be massively affected by the new European system and thought will need to be given to how these will work once the new system kicks into place.
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