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A good step towards a Unitary Patent

Yesterday, Thursday 26 November 2020, the German Parliament (Bundestag) adopted the draft ratification bill on the consent to the Agreement on a Unified Patent Court at its 195th session.

This vote, which has now been repeated after a first – failed – attempt in 2017, became necessary because the German Federal Constitutional Court decided on 13 February 2020 that the two-thirds majority required for such legislative procedures was not met in that first vote (only about 35 of 630 elected members of parliament were present at that time). The first vote was therefore declared void (see our blog post of 20 March 2020).

With the Law on the Agreement on a Unified Patent Court, the conditions for ratification of the Agreement of 13 February 2013 on a Unified Patent Court (UPCA) are now in place. This is an essential part of an overall package which, after decades of discussion, aims to create a European Unitary Patent with uniform effect in all member states of the European Union.

However, the effects of the brexit on the EPC are still controversial, as the United Kingdom has not only left the EU, but has thus also withdrawn from the planned unitary patent, although e.g. Art. 7 UPCA still provides for London as the seat of the planned central chamber division. However, according to the view taken by the German Ministry of Justice, the UPCA is not to be understood as meaning that the parties wish to establish part of the new court in the non-contractual territory and the reference to London is therefore obsolete. Accordingly, the other proposed sites in Paris and Munich would, in the medium term, take over the functions of the proposed London seat until a new seat is designated and created.

The next step will be for the German Bundesrat to take a final look at the draft law in its session on 18 December 2020. Germany plans to ratify the UPCA before the end of this year.

Our blog contributions shall provide an overview with regard to legal topics, legislation and case law and are supposed to provide some general information rather than constituting any specific advice. Please do not hesitate to contact Maiwald and in particular the authors of the particular contributions if have any questions on the addressed topics or on other legal issues.

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Heike Röder-Hitschke



Certified IP Lawyer

UPC Representative

LL.M. "International Studies in Intellectual Property Law“