Federal Constitutional Court clears the way for Unitary Patent

The German Federal Constitutional Court at Karlsruhe rejected two new applications for preliminary injunction against the European Unitary Patent by a decision of June 23, 2021. In its reasoning, the Senate stated that the constitutional complaints lodged in the principal proceedings are inadmissible as the complainants failed to sufficiently assert and substantiate a possible violation of their fundamental rights.

The complainants had alleged a violation of the principle of the rule of law, of the fundamental right to effective legal protection, and violations of Union law. In this respect, however, they had not explained in detail to what extent the Unified Patent Court Agreement (UPCA), due to the organizational structure of the Unified Patent Court and the legal status of its judges, would violate the enshrined principle of the rule of law, and thus affect the principle of democracy.

Federal President Frank-Walter Steinmeier will now sign the law passed by the Bundestag and Bundesrat in November and December.

The start of the Unitary Patent is currently expected for the beginning of 2022, subject to German approval. With the exception of Spain and Croatia, all EU member states will participate, but presently it is not foreseeable whether the Unitary Patent will still apply to the United Kingdom after Brexit. Any holder of a European Patent will soon be able to apply for unitary effect centrally with the European Patent Office.

For you as applicant of European patents it is now very important, to pose the question and answer it, whether a unitary patent protection or the present European patent is reasonable. It is our pleasure to provide you with our advise and explain pro and contra of both systems to you.

Unitary Patents will make it possible to get patent protection in all participating EU member states by submitting a single request to the EPO. European Patent owners will be able to file a request for unitary effect, thereby getting a Unitary Patent that provides unitary patent protection in all participating EU member states. With this approach, maintenance fees and representation costs are reduced enormously, as the validation step can be bypassed. However, the Unitary Patent is then also exposed to “central attack”, according to which the Unitary Patent protection can fall completely with only one attack on the patent. In the case of a bundle patent that divides into national patents via validation, this can only be done with enormous effort on the part of the attacking party. Patent protection on validated patents will remain in force in all other validating countries despite an attack in one validated country.

August 18, 2021
Vanessa Bockhorni

Source: press release no. 57/2021 from July 9, 2021 of the Federal Constitutional Court