European Unitary Patent is coming (continuation of the article of 02/2021)

The Protocol to the Agreement on a Unified Patent Court on provisional application entered into force on 19 January 2022. The final preparations for the Unified Patent Court and the Unitary Patent can now begin.

After the German government had ratified the Protocol to the Agreement on a Unified Patent Court on provisional application in September 2021 and Austria had also deposited its ratification deed on 18 January 2022, the Protocol entered into force on 19 January 2022.

This is the capstone of a long-lasting effort for an EU-wide unitary patent system and at the same time the foundation stone for the application of the Unitary Patent and the emergence of the Unified Patent Court.

It is expected that the Unified Patent Court will open its doors in the 2nd half of 2022, once its judges have been appointed and its rules of procedure adopted. This will transfer jurisdiction for Unitary Patents to the Unified Patent Court.

In future, a single patent application will be sufficient for a patent to be valid in up to 25 EU member states. The Unified Patent Court, with its headquarters in Luxembourg, will be responsible as an international court for infringement and nullity actions relating to Unitary Patents granted by the European Patent Office and will protect compliance with them across borders within the EU. Patent owners will thus be able to enforce their Unitary Patents transnationally before a single court in the future.

On the history

The EU had been working on a reform of European patent law for a long time. Since 2013, there has been an agreement by most EU member states for a European unitary patent. So far, however, this has not been able to enter into force due to the lack of approval by Germany, one of the three member states with the highest patent volume.

First, in 2020, the German Federal Constitutional Court declared a corresponding law null and void because the required two-thirds majority of all members of the German Bundestag was lacking. As a result, the law was passed again at the end of 2020 with the same wording.

Before the turn of the year 2020/21, two constitutional complaints with applications for preliminary injunctions were filed with the Federal Constitutional Court. In September 2021, the Federal Constitutional Court ruled that the Agreement on a Unified Patent Court “does not regulate the relationship between Union law and national constitutional law beyond the status quo” and that the it was therefore not objectionable. This decision finally cleared the way for Germany to ratify the Agreement and thus for its EU-wide implementation.



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