Dr. Ingve Björn Stjerna, LL.M.

EU Patent Reform: Compatible with the German Constitution?,

Article on the possible ratification of the international Agreement on a Unified Patent Court in Germany (Published on 11/10/2014)

While the delivery of the Statement of Position of the Advocate General in the CJEU nullity proceedings against the two Regulations on the “unitary patent” is delayed, the German Federal Government seems to prepare for the ratification of the international Agreement on the Unified Patent Court. That the fee situation is still unclear and that there is no final version of the Rules of Procedure yet do not appear to be regarded as obstacles, nor do the constitutional complaints in a number of European countries and the complaints to the European Court of Human Rights raised against the procedures at the European Patent Office (EPO). Since the Court Agreement relies on the activities of the latter and on the legal sources underlying these activities, such violations of fundamental rights would be continued by it. In case of an international Agreement, German law provides for the possibility to request an assessment of a ratification’s compatibility with fundamental rights by the Federal Constitutional Court, prior to the ratification statute entering into force. This means of legal redress, which can also be available to legal persons with a seat outside Germany, and some aspects of the “unitary patent package” with relevance under constitutional law will be explained below.

  • Download English version (article of 06/10/2014, redacted version of 11/10/2014, PDF)
  • Download German version (article of 06/10/2014, redacted version of 11/10/2014, PDF)

Resources:

  • Link to the protocol of Prime Minister Cameron’s statement in the House of Commons on 02/07/2012 on the European Council summit of 28-29/06/2012 and its results in relation to the “unitary patent” and court system (Hansard)
  • Link to the Press Statement “European patent judiciary is well underway” of the Federal Ministry of Justice and Consumer oProtection of 19/03/2014 (PDF, German)
  • Link to the video recording of the Legal Affairs Committee meeting on 11/10/2011
  • Link to Stjerna, The Parliamentary History of the European “Unitary Patent” (Tredition 2016)
  • Link to “Statement of Positon” of Advocate General Juliane Kokott in matter 1/09 of 02/07/2010 (PDF) | Original (PDF, French)
  • Link to interlocutory decision R 19/12 of the EPO Enlarged Board of Appeal of 25/04/2014 (PDF, German)


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