Germany’s constitutional court has said it will decide a challenge to the proposed Unified Patent Court (UPC) this year. However, a time frame for hearing the case is as yet unknown.

The Bundesverfassungsgericht (BVerfG) today published a list of cases it ‘intends to decide’ in 2018. The list includes Düsseldorf intellectual property attorney Ingve Stjerna’s challenge to the constitutionality of the German legislation enabling ratification of the UPC agreement.

By ‘deciding’ on the case, the court could still throw out the challenge, or order further hearings, the Gazette understands. The court did not confirm whether any special dispensation will be afforded to the case or when it will be heard.

According to statistics published by the court, 64% of cases lodged between 2009 and 2016 were resolved within one year of a case being filed. If that is the case, it would mean the court could come to a conclusion as early as next month.

Stjerna’s challenge alleges;

  • A violation of the ‘qualified majority requirement’ under German law. This stipulates that a majority of two thirds of the members of the German parliament and Federal Council must rule on anything that transfers sovereign powers to European institutions;
  • Democratic and rule of law deficits in relation to the legislative powers of the UPC;
  • Lack of independence and democratic legitimacy of UPC judges;
  • That the UPC agreement is incompatible with EU law.

The court's intention to hear the case puts fresh doubt on when, or if, the UPC will become operational. In order for the UPC to be set up, Germany, the UK and France must all ratify the agreement. So far, only France has done so.

Although the UK is currently undergoing the final stages of ratification its membership could be thrown into doubt if the German court does not come to a final decision on the case by the time the UK leaves the EU.

As it stands the UPC, which will hear disputes related to unitary patents, is open only to EU member states. The government is yet to say whether it intends to remain a UPC member post-Brexit.

One of the UPC’s major divisions is set to be housed in Aldgate Tower in the City of London. It will, on occasion, have to refer certain matters to the Court of Justice of the EU (CJEU). According to the UK Intellectual Property Office, the CJEU’s role will be restricted to issues of interpretation in limited areas where EU law impacts on patent law.

Stjerna has been critical of the UK's intention to ratify the UPC agreement despite its desire to end CJEU jurisdiction. In a blog post he said the government's position is ‘hardly reconcilable’ with that commitment. ‘At the very least, an explanation is needed why in case of the UPC the creation of new obligations from union law and respective powers for the CJEU as well as a respective liability of the UK for union law violations are deemed acceptable, despite the envisaged objectives for leaving the EU,’ Stjerna said.