EU Patent Alert #1/2017 – Introduction postponed indefinitely

The Preparatory Committee has postponed the introduction of the unitary patent indefinitely. On 07 June 2017 (the day prior to the election in the United Kingdom), the previous target date of "December 2017" was rescinded and expressly no new target date was defined.

It has been additionally reported in the press since June 12, 2017 that the German Federal Constitutional Court had asked the Federal President not to issue the German ratification act for the time being. It is said that a constitutional complaint had triggered this request. In view of the specific construction of the patent and the intended court system, there are indeed several open questions related to constitutional law, for example, from the perspective of potential defendants. While this does not mean that the unitary patent had finally failed, this development nevertheless has a concrete consequence: any opt-outs do not have to be filed in the summer of 2017.

To date, neither the United Kingdom nor Germany have ratified the corresponding agreement. It remains to be seen whether the United Kingdom will be advancing this project of enhanced cooperation in parallel with the exit negotiations. Also open is the question if an international agreement could be concluded in time to ensure the functioning of the unitary patent system even in the post-Brexit period? Or would the crack caused by Brexit go right through the unitary patent system?

The development is difficult to predict. Regrettably, it remains exciting.