There has been a challenge to the Unified Patent Agreement launched in the German constitutional court, as a result of which the German government has now halted progress on the legal work necessary for it to ratify the UPC Agreement. The constitutional challenge is by an “unnamed person”. Apparently this type of challenge is quite common in Germany.
We understand that the challenge is based on four constitutional challenges to the EPO which are currently pending in the German constitutional court. These relate to the EPO Boards of Appeal, which it is alleged are not fully independent of the EPO, and also the legal rights of EPO employees. German law requires employees of intergovernmental bodies to which Germany is a party to have the same rights as they would have under German law.
The challenge to the UPC agreement is, we understand, based on similar arguments on the basis that these issues were not taken into consideration properly in the drafting of the UPC Agreement. The results of the four constitutional challenges to the EPO are due later this year. Commentators write that the constitutional challenge to the UPC Agreement could theoretically be held within seven months. However, it will not take place at least until the EPO cases have been decided and some think it is possible that it may not take place until after the Brexit negotiations have been completed.
There is of course much speculation about this new development at present and we shall keep you up to date with news as and when it is available.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.