Last Friday, the German Federal Constitutional Court issued its long-awaited decision on the validity of the ratification of the UPC by Germany. In their decision, the court rejected the ratification of the UPC because the necessary majority of two thirds was not reached. When the original vote to ratify the UPC was passed, all those who did vote were in favour but the total number voting did not meet the required two thirds of those eligible to vote.

Whilst this means the ratification is null and void, the court did indicate that the other grounds put forward for invalidating the ratification, based on the substantive content of the ratification were not admitted. In other words, the substance of the ratification was acceptable but the procedural requirement for a two-thirds majority was not met. This means that the ratification could be completed by repeating the vote with the required number of people.


However, with Brexit, the withdrawal of the UK from the EU is likely to require review and revision of the UPC agreement to reflect this. With the current UK position seemingly preventing participation in the UPC, that could introduce further delay to the ratification process and the introduction of the UPC. As a significant player in European litigation, the absence of the UK from the UPC may be sufficient reason for a serious rethink of the value of the UPC and the unitary patent as they currently stand.


Dr Adrian Bradley

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