UPC – German legislation implementing UPC delayed

Posted: June 13th, 2017

Entering into force of German legislation implementing the unitary patent system delayed

Parliamentary proceedings on the legislation implementing the unitary patent system in Germany were accomplished this month when the second chamber approved the Protocol on Privileges and Immunities. The last step before publication and entering into force of the new law is the signature by the German President.

Normally, the President signs a new law within short time. However, the Frankfurter Allgemeine Zeitung reported on Monday that the German Constitutional Court (Bundesverfassunsgericht – BVerfG) had asked the President already on April 3 to suspend his signature.

The reason is a complaint filed against the law by a private person, the complaint being connected with a request for provisional measures. The complaint can only be based on the grounds that the law violates the German constitution and apparently the Court considers that the case is not without any merits from the outset. The Court announced that the request for provisional measures will be assessed soon.

The President’s decision to accede to the Court’s request means a delay for the entering into force of the implementing law of at least a few months. The specific grounds on which the complaint is based are not yet known.

The Court’s action is rather exceptional and it shows that it takes the constitutional objections raised serious. Besides this new case, four further complaints concerning the European patent system are pending before the Court in which the question whether the appeal from decisions of the EPO to the Boards of Appeal comply with the constitutional requirements of a proper judicial review. These cases are listed in the Court’s calendar for 2017 and it remains to be seen whether there is some relationship between the constitutional questions to be decided.

Reported by Rudolf Teschemacher

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