Karlsruhe. On 20 March 2020, the Federal Constitutional Court announced its decision on the pending constitutional appeal in the matter of Act of Consent to the Convention of February 19, 2013 on a Unified Patent Court (UPC) and, for the time being, put a damper on the progress of the European unitary patent.

The currently pending ratification of the UPCA by Germany is necessary for the entry into force of the EU Regulation (No. 1257/2012) on the European unitary patent. According to the EU Regulation, the entry into force is in connection with the requirement that Germany, as one of the three member states with the most European patents in force, ratifies the European unitary patent.

The decision is now essentially based on the fact that the approval act for the UPCA was not passed by the German Bundestag with the necessary two-thirds majority. At the time the law was passed, only 35 members of parliament were present in the Bundestag. However, since the UPCA is intended to transfer jurisdiction to the Unified Patent Court, the Federal Constitutional Court considers the UPCA to be a material constitutional amendment and thus such a far-reaching interference with the state's fundamental order or the democratic influence of citizens that a two-thirds majority would have been necessary under Article 23 (1) sentence 3 in conjunction with Article 79 (2) of the Constitutional Law. The UPCA approval act (EPÜ-ZuStG) transfers jurisdictional tasks to the unified patent court and assigns certain legal disputes to it for exclusive decision. Finally, the UPCA declares the decisions enforceable.

In principle, it is conceivable that a new vote in the Bundestag will be held. However, due to the current political situation it is not foreseeable if and when such a further vote could be successful. Consequently, the future of the European unitary patent remains open.

***UPDATE*** In the meantime, the Federal Government has reacted to the ruling of the Federal Constitutional Court and declared that it intends to remedy the identified lack of form as far as possible "within this legislative period". The European Patent Office, by representative EPO President Campinos, also welcomed the German government's position. It is now time "to make the EU patent package become reality".