On 20 March 2020, Germany’s constitutional court has ruled that the nation's ratification of a long-planned Unified Patent Court (UPC), which would create a single legislature for the whole of Europe to decide on patents, was unconstitutional. In its reasoning, the Senate stated that, in order to safeguard their right to influence the process of European integration by democratic means, this, in principle, also entails the right of citizens that sovereign powers be conferred only in the ways provided for by the Basic Law. An act of approval to an international treaty that has been adopted in violation thereof cannot provide democratic legitimation for the exercise of public authority by the EU or any other international institution supplementary to or otherwise closely tied to the EU.
As a reaction to the decision, the German Minister of Justice and Consumer Protection, Christine Lambrecht, promised to continue to work towards a single European patent and a European Patent Court. The Federal Government will carefully evaluate the decision of the Constitutional Court and examine possibilities to remedy the identified issues before the end of the legislative period (see official press release in German).
The President of the European Patent Office (EPO), António Campinos, commented: "IP-intensive industries contribute 45% of GDP in the EU annually and 39% of all jobs. But sadly, we know that employment and growth are predicted to suffer badly in the aftermath of the Coronavirus. So it's important that now, more than ever before, measures are taken to support our industries. And we know that the UP and UPC can indeed provide that support, with reduced costs, simplified administration and greater legal certainty. (…) The statement by the German government makes it clear that approval of the UPC Agreement with the required parliamentary majority is still possible. So it is time to act. It is time to make the long-awaited UPP a reality, for the good of our innovation sector, for the good of our businesses and industries, and for the good of our economy."
The UPC Agreement was signed in February 2013, and had to be ratified by 13 EU member states, including the three largest patenting countries. It would set up a single court, with branches across Europe, to hear disputes on the validity and infringement of European patents.
Germany’s ratification would have brought the UPC into effect, but the president suspended ratification pending the Court’s decision. Separately, the UK recently said that it will not take part in the UPC after Brexit.