Federal Constitutional Court paves the way for the unitary patent

The European unitary patent, which has been planned since 2013 at the latest, aims to save time and money for companies. According to the EU Commission, the cost of applying for an invention could be reduced by up to €32,000 if a European patent is applied for once centrally and, after examination, is valid directly for all participating countries, which would make a national phase obsolete. A critical aspect can be that in the event of a revocation, the corresponding patent would directly fall for all states. Apart from Spain and Croatia, however, all EU states are on board. After years of ambiguity, the way for the unitary patent has been paved in Germany, at least from a legal point of view.

German approval of the unitary patent is mandatory for its entry into force. The Federal Constitutional Court in Karlsruhe had still had to declare a first law null and void in February 13, 2020 (cf. BVerfGE 153, 74 <74 ff.>), as the corresponding vote in the Bundestag on March 10, 2017 did not have the required number of participants. The unchanged law was then passed again at the end of 2020, but two constitutional complaints were directly filed.

Now, in accordance with the decision of June 23, 2021, the Federal Constitutional Court has dismissed the two existing constitutional complaints as inadmissible on the merits. In particular, the complainants have not sufficiently substantiated the extent to which there is a serious violation of fundamental rights. Consequently, there will be no further examination of the constitutional complaints in the main proceedings. These were not directed against the unitary patent as such, but against the Unified Patent Court. This court will be responsible for actions for patent infringement, disputes about the existence of patents and certain actions against decisions of the European Patent Office, and is to be given exclusive jurisdiction for these. The complainants criticized in particular the selection procedure of the judges, who are to be elected only for a fixed term. However, in the view of the Federal Constitutional Court, this is quite common internationally and does not conflict with the requirements of fundamental rights in Germany, especially with regard to judicial independence. The constitutional complaint was also not sufficiently substantiated insofar as it was directed against Article 20 UPCA. This concerns the primacy of application of Union law over national law.

Federal President Frank-Walter Steinmeier can thus execute the law passed by the Bundestag and Bundesrat. In any case, the actual entry into force of the unitary patent can be expected at the beginning of 2022 at the earliest. For this to happen, the above-mentioned judges would still have to be appointed. It can also be assumed that some German lawyers with experience in intellectual property law will be appointed.

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