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Developments spark Unitary Patent Uncertainty

Recent developments in the United Kingdom and in Germany lead to further uncertainty regarding the Unitary Patent and the Unitary Patent Court.

Post-Brexit, the UK announced not to become a member state to the UPC as “Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.” Although the UPC may continue without involvement of the UK, this is expected to substantially reduce the value of the unitary patent. In particular, about 30% of the volume of currently validated European patents would not be covered by the current parties to the UPC, which besides the UK presently also do not include Switzerland and Spain.

In Germany the ratification of the UPC was suspended following a complaint filed against the German legislation implementing the Unified Patent Court agreement. The Federal Constitutional Court has now decided that the complaint is admissible as the implementing legislation passed the Bundestag (part of German Parliament) without the required quota of two thirds of the members of the Bundestag. Hence, the ratification of the UPC agreement is at least further delayed.

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