European Unitary Patent – the dream will (not yet) come true

The implementation of the European Unitary Patent, which, according to the EU Commission, should reduce the costs of inventors for filing a patent by up to EUR 32,000, has been delayed again due to two new constitutional complaints filed with the German Federal Constitutional Court. The court has subsequently asked the German President to wait until the court has decided before signing the act required for the implementation.

 The dream of all inventors is not coming true just yet: The introduction of the European Unitary Patent is being again delayed after the German President complied with a request by the Federal Constitutional Court to wait until the court has decided on two constitutional complaints before signing the necessary law for the implementation of the Unitary Patent.

Unitary Patents enable patent applicants to obtain EU-wide patent protection (or, to be more precise, patent protection in those member states which have ratified the corresponding convention) by submitting a single application to the European Patent Office. For patent applicants, the application process will therefore be considerably easier and cheaper. According to the EU Commission, patent applicants may save up to EUR 32,000 per patent under the new system.

However, the Unitary Patent system is conditional upon the establishment of a Unified Patent Court which will have jurisdiction over both unitary patents and traditional European patents.

Even though the EU regulations for the creation of the unitary patent system already came into force in 2013, they will not apply before the Unified Patent Court Convention comes into force. This in turn requires that it be ratified by those three member states which had the largest number of valid European patents in 2012, which includes Germany.

Back in 2017, the pertinent law was passed unanimously by the German Parliament, but not with the required two-thirds majority. As a result, it was declared null and void by the Federal Constitutional Court.

At the end of last year, the German Parliament passed the law again with the same wording. However, before the law was signed by the President, two new constitutional complaints were filed with the Federal Constitutional Court just before year’s end (file no. 2 BvR 2216/20 and 2 BvR 2217/20), whereupon the German President postponed the issue upon request by the Federal Constitutional Court. It remains an open question when the Federal Constitutional Court will decide on the constitutional complaints.

According to the EU Commission, the original intention was to have the new patent system up and running as of 2022. This schedule has now been called into question. The Unified Patent Court (EPG) will have its seat in Luxembourg.


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