Unified Patent Court

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The Unified Patent Court (EPG) is a scheduled court with two instances of disputes which the European unit Patent relate. This court would be responsible for actions for nullity against European patents, including unitary patents , for actions for infringement and for actions against the European Patent Office for rejection of the application for registration of unitary patent protection. This does not affect the possibility of opposing the European patent within nine months of its grant.

Thus the court can take up the work that has the agreement on a Unified Patent Court (EPGÜ) of 13 EU countries, including Germany, France and the United Kingdom ratified are. So far there have been 16 ratifications. Only that of the Federal Republic of Germany has yet to be ratified. However, the United Kingdom announced on February 27, 2020 that it would not participate in the Unitary Patent System and the Unified Patent Court despite ratification and formally revoked the ratification on July 20, 2020. In Germany, the approval law that had already been passed in 2017 was approved for ratification by a resolution of Federal Constitutional Court of February 13, 2020 repealed.

Legal bases

Structure of the court

The court should include

  • a court of first instance, with
    • a central chamber in Paris with a department each in London and Munich
    • up to four local chambers per contracting member state
    • Regional chambers for two or more contracting member states that can meet in different places
  • a court of appeal (seat: Luxembourg) and
  • a law firm (seat: Luxembourg).

The local and regional chambers are set up at the request of the respective contracting member states.

Entry into force of the Convention

Article 89 (1) of the Convention regulates its entry into force on 1 January 2014 “or on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession under Article 84, including the deposit by the three Member States in which it was in the year preceding the year gave most of the European patents in force when the Convention was signed, or on the first day of the fourth month after the entry into force of the amendments to Regulation (EU) No. 1215/2012 affecting the relationship between that Regulation and this Convention, whichever occurs the latest is. "

The member states with the most valid European patents in the year before the signing of the agreement were the Federal Republic of Germany, France and the United Kingdom.

France deposited its ratification on March 14, 2014. The United Kingdom ratified the Convention on April 26, 2018, but revoked the ratification on July 20, 2020 due to the BREXIT . Ratification in Germany is currently pending after the Federal Constitutional Court repealed the Consent Act. In addition, demands are being made in Italy that the withdrawal of the United Kingdom and thus the location in London would necessitate a change to the contract.

Protocol for the Provisional Application of the Convention

The Protocol on the Provisional Application of the Convention creates the legal basis for the institutional, financial and administrative provisions of the Convention on the Unified Patent Court to become applicable before the Convention enters into force. The phase of provisional applicability should last about 6 months. In it, judges can already be appointed and the IT systems tested. This will ensure that the Unified Patent Court can act from the first day on which the Convention comes into force.

In order for the protocol to come into force, ratifications or comparable deposits from 13 participating member states are required, including the Federal Republic of Germany, France and Great Britain. At the beginning of June 2018, the protocol had not yet been ratified by the Federal Republic of Germany.

Sunrise Period

In the three months before the agreement comes into force - the so-called "Sunrise Period" - it will be possible for the first time to remove European patents granted up to then from the jurisdiction of the Unified Patent Court by means of an "opt-out".

Implementation in Germany

Consent Act

The agreement on a Unified Patent Court was put into effect by the “Law for the Adaptation of Patent Law Regulations on the Basis of the European Patent Reform”. A corresponding ministerial draft was approved by the German government on May 27, 2016. The approval was given unanimously in the Bundestag on March 10, 2017 and in the Bundesrat on February 10 and March 21, 2017. However, only 35 members were present for the decision in the Bundestag, and all speeches were only given for the record.

Accordingly, the law on international patent agreements (IntPatÜG) is to be adapted as follows:

  • European patents granted with effect for the Federal Republic of Germany can only be declared null and void by a German court if the Unified Patent Court is not competent.
  • While a national German patent becomes ineffective for Germany through a European patent for the same invention by the same owner, a national German patent and a corresponding unitary patent can coexist. However, in the event of the infringement of one of their patents, the patent owner of both property rights must determine in advance from which patent he would like to proceed against the infringer.
  • So that decisions and orders of the Unified Patent Court can be enforced domestically without difficulties, there will be a new law on enforcement law.
  • The judicial collection regulations are declared to be applicable for the collection of certain claims of the Unified Patent Court, and the tasks of the Federal Office of Justice (BfJ) are expanded in this context.
  • Important changes in connection with the new European patent system are to be announced in the Federal Law Gazette.

Constitutional complaint

After receipt of a constitutional complaint , with which above all the violation of Art. 92 GG and Art. 23 para. 1 sentence 3 GG i. V. m. Art. 92 GG and Art. 79 Para. 2 GG is criticized, the Federal President has initially suspended the execution of the laws at the request of the Federal Constitutional Court . In a decision of February 13, 2020, the Federal Constitutional Court declared Article 1, Paragraph 1, Clause 1 of the Act to be unconstitutional and null and void, since the matter involved was an amendment to the Basic Law , but for which the necessary two-thirds majority in the Bundestag did not come about is. Federal Justice Minister Christine Lambrecht then announced that another vote would take place during the current legislative period.

Position of the AfD

On March 15, 2018, the AfD parliamentary group applied to the Bundestag to have the law on the agreement of February 19, 2013 on a unified patent court and the law on the adaptation of patent law regulations due to the European patent reform repealed before it came into force . After a 45-minute debate, the Bundestag referred the motion to the Legal Committee for leading advice.

Individual evidence

  1. ↑ a b Convention on a Unified Patent Court , accessed December 25, 2016.
  2. ^ Status of the ratifications on the website of the European Council
  3. ↑ Mayer Brown: UK confirms that it will not become a member of the Unitary Patent and Unified Patent Court, March 4, 2020
  4. ↑ a b UPC: UK Withdrawal from the UPCA | Unified Patent Court. July 20, 2020, accessed July 23, 2020 .
  5. ↑ BVerfG, decision of February 13, 2020 - 2 BvR 739/17 = GRUR 2020, 506.
  6. ^ Website of the firm Bristows: “UK ratifies the UPC Agreement” , accessed on April 26, 2018
  7. ↑ International Association for the Protection of Intellectual Property, Section Italy :: Documento di Posizione - Candidatura di Milano ad ospitare una sezione della Divisione Centrale del Tribunale Unificato dei Brevetti. June 11, 2020, accessed on July 23, 2020 (it-IT).
  8. ^ Protocol on provisional application of the Unified Patent Court Agreement (PPA) - Ratification Details , accessed March 25, 2018
  9. ↑ Act on the Convention of February 19, 2013 on a Unified Patent Court , accessed on March 14, 2018
  10. ↑ annulment in BT printed matter 19/1180 , accessed on 14 March 2018
  11. ↑ Minutes of the plenary session of the 221st meeting , accessed on March 14, 2018
  12. ↑ Law to adapt patent law regulations due to the European patent reform , accessed on January 9, 2017
  13. ↑ LTO of June 12, 2017: "BVerfG stops EU patent" , accessed on March 14, 2018
  14. ↑ BVerfG, decision of February 13, 2020, AZ 2 BvR 739/17
  15. ↑ AfD wants to repeal laws on European patent law , accessed on April 30, 2018