The agreement concerning the European Patent Court is once again delayed. The agreement concerning the establishment of a so-called unitary patent and a joint patent court was planned to come into force in December 2017, but this will presumably not be the case.

The German constitutional court has recommended to the German Federal President, Frank-Walter Steinmeier, to wait signing the act ratifying the agreement in Germany. This is a consequence of the constitutional court having received a complaint that the future unitary patent and the European Patent Court are contrary to the German constitution. The claimant and the detailed content of the complaint are unknown at the moment.

In order for the agreement to come into force, minimum 13 out of 25 countries must ratify the agreement, including the three countries with most European patent applications, which are Germany, England and France. Of these three countries, only France has ratified the agreement, and the entire procedure has already faced a lot of opposition due to Brexit. The recent situation in Germany may now cause a further delay.   

Basically, Germany was ready to ratify the agreement, and the act implementing the agreement had also been approved by the German legislature (Bundestag and Bundesrat). The only thing missing was the Federal President’s signature.

The fact that the German ratification procedure has been put on hold is of importance in relation to the coming into force of the agreement. The plan was for Germany to ratify the agreement in September with the effect that it could come into force in December 2017. This will probably be postponed. As Germany’s ratification is required in order for the agreement to come into force, the German constitutional court’s decision on the complaint is required in order for the agreement to come into force. If the German constitutional court finds that the agreement is contrary to the constitution, this may mean, in principle, that the agreement cannot be ratified in its present form. We are therefore awaiting the decision of the constitutional court.

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Anders Valentin

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