Dr. Markus Herzog

UPC Agreement


Federal Constitutional Court: "Law on the Agreement on a Unified Patent Court is null and void."

See my earlier newsletter “German Constitutional Complaint Against The UPC Agreement – A Look in the Crystal Ball of German History –”, published on 19 February 2018, its first update published on 4 February 2019, and its second and third updates published on 13 December 2019 and 2 March 2020, respectively.

In its decision of 13 February 2020, announced on 20 March 2020, the Second Senate of the German Federal Constitutional Court declared the law on the Agreement on a Unified Patent Court (UPCA) null and void by a majority of five to three votes. According to the Senate, the law has the effect of a substantive constitutional amendment, but has not been passed by the German Bundestag with the two-thirds majority required for this purpose (Article 23 (1) sentence 3 in conjunction with Article 79 (2) of the German Grundgesetz).

Thus, the UPCA has suffered a further damper after the problems with the branch office of the central division of the Unified Patent Court, which was actually intended for London, caused by the Brexit.

It is encouraging, however, that the Federal Constitutional Court considered the constitutional complaint inadmissible with regard to all other points raised by the complainant.

Thus, the UPCA is not dead, but mere suffered one further wound in addition to the "London question", which wound, however, can be healed by a renewed vote in the German Bundestag.

Although, the Federal Republic of Germany has been given homework by the Federal Constitutional Court, it seems to be more decisive for the UPCA entering into force whether and when the member states of the European Union will agree on a new location for the branch office of the central chamber of the Unified Patent Court, and whether further amendments to the UPCA will be required by some member states of the European Union. It is not to be expected that the process will be resumed before the COVID-19 crisis has been overcome.


Dr. Markus Herzog, Dipl. -Phys., Dr. rer. nat., Patent Attorney, Partner
Weickmann & Weickmann, Patent- und Rechtsanwälte PartmbB, Munich
Tel.: +49 (89) 455630 | E-Mail: mherzog@weickmann.de



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