The long-drawn out process of setting up a unified patent regime for Europe has hit a new delay, with the German Constitutional Court extending its deadline for comments about the credibility of a legal challenge. 

The Bundesverfassungsgericht (BVerfG) said today it will accept submissions until 31 December instead of 31 October – meaning no decision on whether to hear the case will be made until at least next year. As a result, German ratification of the underlying treaty is on hold. 

The challenge, filed by Düsseldorf intellectual property attorney Ingve Stjerna, questions the constitutionality of the German legislation enabling ratification. A spokesperson for the court told the Gazette the challenge ‘claims a violation of the limits deriving from the right to democracy with respect to the transfer of sovereign powers.’

The case also alleges:

  • 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;
  • Allegations that the UPC agreement is incompatible with European Union law.

Organisations that have been asked to submit comments include; the Federal Bar Association, the German Lawyers’ Association the European Lawyers’ Association. The European Patent Office, which will grant unitary patents once they come into force, has also been invited to comment.

‘During the further course of the proceedings it is possible that the court may ask additional agencies to submit statements,’ the court added.

The UPC, which will hear disputes related to unitary patents, has been beset with delays - not even counting the complications of Brexit. One of the court’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. The UK Intellectual Property Office stresses that the CJEU's role will be restricted to issues of interpretation in limited areas where EU law impacts on patent law. 

The UK government, despite pledging to end the jurisdiction of the CJEU after Brexit, has said it plans to honour commitments to sign up to the patent agreement. Parliament is to debate a statutory instrument that will give the court ‘legal personality’in the coming weeks.

However, the German challenge puts the entire project in doubt, as Germany and the UK's ratification is required before the agreement goes ahead.  The committee tasked with implementing the court has already conceded that the planned start date of December this year will not be met.