Patent Law: End of the term of office of Constitutional Court judge Prof. Huber – When a constitutional complaint outlasts the twelve-year term of office of the judge responsible for it (Published on 08/12/2022, latest update on 12/01/2023)

For years, several constitutional complaints against acts of the European Patent Office have been pending before the German Constitutional Court (“BVerfG”). Five such proceedings are currently publicly known, namely those with the docket numbers 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 786/15, 2 BvR 756/16 and 2 BvR 561/18 (afterwards “EPO complaints”), in which, among other things, a violation of the fundamental rights to effective legal protection (Article 19 (4) of the Grundgesetz [“GG”]) and to the lawful judge (Article 101 (1) sentence 2 GG) is complained of.

As is well known, the decisions of the BVerfG – as well as of other panels of judges to which several judges belong (so-called “collegial courts” [“Kollegialgerichte”]) – are prepared by the so-called “judge rapporteur”, or short “rapporteur”. The rapporteur for the EPO complaints in the responsible Second Senate is judge Prof. Peter M. Huber, who, in the field of intellectual property law, is known in particular for the not necessarily consistent decisions on the European patent reform for which he was the rapporteur as well.

The oldest two EPO complaints, dating from 2010 and 2013, have been listed since 2016 in the so-called “annual preview” (“Jahresvorschau”) of the BVerfG, which provides an overview at the beginning of a calendar year of those proceedings that the court intends to decide in the course of the year. Since 2021, all aforementioned EPO complaints have been listed in the annual preview of the court. Judge Prof. Huber has already indicated in a commentary in 2018 that he may consider the legal protection at the EPO to be in line with the minimum required by the German Grundgesetz.

Nevertheless, not a single one of the EPO complaints has been decided to date.

Strange to say, the twelve-year term of judge Prof. Huber, who has been in office since November 2010, has now expired (cf. Section 12(1) of the Federal Constitutional Court Act [“BVerfGG”]). He is currently holding the office on a provisional basis (cf. Section 12 (4) BVerfGG) until the chronically inconclusive German politics have concocted a successor in accordance with their usual mechanisms (on the respective procedure cf. my article here). This means that the proceedings 2 BvR 2480/10, which were presumably started during the first half of 2010, lasted the entire term of office of the judge rapporteur Prof. Huber without a decision. For more than twelve years, the complainant has been waiting for a decision of the highest German court on the compatibility of the complained processes at the European Patent Office with his fundamental rights. Incidentally, these fundamental rights also include the right to effective legal protection under Article 19 (4) GG, which (among other things) requires a judicial decision within a reasonable period of time, including by the BVerfG itself.

Does the BVerfG still fulfill the function ascribed to it by the Grundgesetz as the so-called “Guardian of the Constitution”, in particular of fundamental rights? Do mechanisms and requirements essential under the principle of the rule of law still play a role there at all?

It should be mentioned that in addition to judge Prof. Huber, the term of office of judge Monika Hermanns in the Second Senate has also expired in November 2022. She, too, is currently still in office on a provisional basis, as her successor – as usual – has not yet been determined either. Since the judges yet to be appointed are likely to be excluded from participation in the EPO complaints (at least without a restart of the deliberations), one may await the further course of these proceedings with interest.

Update (12/01/2023):

After the responsible judge rapporteur Prof. Huber was discharged from his office yesterday by the Federal President after his term of office had expired, the BVerfG published its decision of the above mentioned EPO complaints this morning. All five constitutional complaints were rejected.

It remains to be noted that the complainants in these proceedings had to wait between more than four (case 2 BvR 561/18) and more than twelve years (case 2 BvR 2480/10) for a decision on their constitutional complaints and thus for the granting of legal protection by the BVerfG.

As the press release on Prof. Huber’s farewell states, in addition to receiving his certificate of discharge, the Federal President awarded to him the “Grand Cross of Merit with Star and Shoulder Ribbon of the Order of Merit of the Federal Republic of Germany for his services to the Federal Republic of Germany on this occasion” (translation from German language).

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