Unitary Patent Court Update

We have recently reported on the latest development in relation to the Unitary Patent Court, in particular in relation to the expected interim decision. Decision has now been reached and has seen the rejection of applications for preliminary injunction, we look at what this means for the future of the Unitary Patent Court project.

In the order published 9 July, the German Constitutional court rejected two complaints filed against the ratification Bill of the Agreement on a Unified Patent Court. In the reasoning, the court stated that the complaints are inadmissible as both failed to sufficiently assert and substantiate a possible violation of their fundamental rights.

While this decision allows the process of establishing the UPC to proceed, the question of court location post-Brexit still needs to be answered.

One option would be to withdraw all competency of the London court in favour of Munich and Paris, which may be possible without a substantial amendment to the agreement necessitating a new round of ratifications. However, it is unclear, whether the other participating member states would accept such a solution, as e.g. Italy already has put forward Milan as a “successor” for London and it may be expected that the Netherlands will also present a possible candidate.

The change of the court locations set out in the UPC agreement in favour of one of the other contracting states seems only possible by amending the agreement as such.

Thus as a summary it may be questionable, whether the decision of the German Constitutional Court can indeed be seen as the “green light” for the start of the UPC scheme in view of the remaining issues, but at least another important hurdle has been taken.

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