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New patent court in doubt as German challenge looms

Intellectual property (IP) professionals say that plans to create a unified court for patent litigation in the EU could be jeopardised if a crucial court challenge in Germany is not heard swiftly.

Germany’s federal constitutional court, the Bundesverfassungsgericht (BverfG), said last week that it will decide on a challenge to the proposed Unified Patent Court (UPC) this year. However, the BverfG has not provided a firm time frame for hearing the case. The news puts the UPC project in doubt, as German and UK ratification is required before the agreement can be formally implemented.

The BverfG challenge, filed by Düsseldorf IP attorney Ingve Stjerna, questions the constitutionality of the German legislation enabling the UPC’s ratification.

Luke McDonagh, senior lecturer in IP and constitutional law at City, University of London, said that with Brexit looming, it is crucial for the court to make its decision.

‘If a positive ruling comes early there is a chance the UPC could be fully ratified and it might even start hearing cases before March 2019,’ he said. ‘By contrast, if a positive decision does not happen until late in 2018, it makes the timescale very tight. And if ratification does not happen before Brexit, it makes UK membership less likely, and may even throw the UPC’s future into balance.’

He added: ‘A decision that Germany cannot ratify would kill the UPC as Germany is the largest patent litigation territory in Europe.’

Luke Maunder, associate at City IP specialists Bristows, said there has been a ‘frustrating’ lack of information about when the court will make a decision and whether it will come in time for the UPC to come into being before Brexit.

‘That is highly relevant as UPC start-up post-Brexit would add a further layer of complication, especially if the much-talked-about Brexit transitional period does not materialise,’ he added.

The UPC, which will hear disputes related to unitary patents, will be open only to EU member states. One of the court’s major divisions is set to be housed in Aldgate Tower (pictured) in the City of London. It will, on occasion, have to refer certain matters to the European Court of Justice.

The UK is currently undergoing the final stages of ratification, a process requiring the rubber stamp of foreign secretary Boris Johnson.

1 reply
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