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Germany puts halt on European unitary patent

Constitutional Court slams brakes on UPC – but why?

Europe's effort to create a single patent system has been thrown into confusion following a decision by Germany's constitutional court to halt legislation ratifying it.

According to German media reports, since confirmed by a court spokesperson, the court received a complaint from an as-yet-unnamed individual arguing that the unitary patent and unified patent court (UPC) breaks German law.

The complaint has been taken seriously enough that the court has directed Germany's federal president not to put forward legislation to make the new system law.

The unitary patent system has been in process for a number of years, at times amid controversy, but the German court decision caught everyone unawares.

The idea is pretty simple. Even though there is a Europe-wide patent system, infringement is decided according to each individual country's laws. The UPC would remove that time-consuming, expensive and inefficient system with a single court system.

This being Europe of course, different types of patents would be decided in different courts dotted around Europe: a central chamber in Paris, one department (life sciences) in London, another in Munich (mechanical engineering), and a court of appeal in Luxembourg.

Following the Brexit decision by the UK to leave the European Union, many questioned whether it meant the end of the UPC. There have been conflicting views ranging from the death of the UPC, to lengthy delays, to full steam ahead.

However, no one expected the German courts to slam the brakes on the effort. Starting in 2014, European countries have been slowly ratifying the agreement. So far 12 of the 25 countries involved have done so, but critical to the agreement are the UK and Germany, given the percentage of patents and commerce that they represent (France ratified the agreement in 2014).

It doesn't mean that the effort is dead, of course, only that it is on hold while the constitutional court reviews the case. That case is, reportedly, going through an expedited process, so we should hear more details soon and get a decision relatively quickly.

Regarding European patent law, it is worth noting that the organization designed to deal with European patents, the European Patent Organization (EPO), has been in the midst of a full corporate breakdown for a number of years thanks to its Napoleon-like president, Benoit "King" Battistelli. ®

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