16th February 2021

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

The dream of all inventors is not coming true yet: The introduction of the European Unitary Patent is delayed again 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 more precisely: patent protection in those member states that 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 can save up to EUR 32,000 per patent under the new system.

The Unitary Patent system, however, is conditional upon the establishment of the Unified Patent Court, which has 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. The prerequisite for this, however, is its ratification by the three member states that had the most valid European patents in 2012, which includes Germany.

Back in 2017, the pertaining 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 the year 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. When the Federal Constitutional Court will decide on the constitutional complaints is questionable.

According to the EU Commission, it was previously intended to get the new patent system set to be launched from 2022. This date is now questionable. The Unified Patent Court (EPG) will have its seat in Luxembourg.



Members of the American Chamber of Commerce in the Czech Republic