No UPC in 2021 - try again next year?

The drama of the Unified Patent Court and the Unitary Patent project is one of many global dramas gripping our attention lately.  

As readers will be aware, about a year ago, the German Federal Constitutional Court declared that Germany’s first ratification of the UPC project was invalid. See Lens post here as to the background to the constitutional complaint and the Court reasoning for its partial success. The drama returned in late 2020 when the re-ratification instruments were back before both German Houses of Parliament. Again the documents passed the Bundesrat (Upper House) and Bundestag (Lower House).

Think that the drama was finished? Nope. In January 2021, according to respected IP journalists, the German Federal Constitutional Court asked the Bundespräsident to refrain from signing the bill into law.  This was on the basis that two constitutional complaints were filed against second ratification, by Dr Ingve Stjerna (complainant in the successful earlier challenge) and by a currently unknown entity. 

This brought us to the next twist in the tale: when should the German Federal Constitutional Court hear these complaints? On an expedited basis (as this drama has been going on for years, German Parliament has voted twice, to delay would be undemocratic)? or as ordinary court business (as this is still a global pandemic after all, the court has other urgent business to attend to, to jump the queue with this legislation would be undemocratic)?.

We got the answer to this sub plot very recently when the German Federal Constitutional Court published its annual list of matters that it intends to hear during 2021. This is traditionally known in German as the 'Liar’s List', as the German Federal Constitutional Court has historically been unable to decide all the intended cases by end of the year. Not surprisingly, the list is interesting for what is on it, but also what is not on it (ie cases where appeals have been filed). Of significance this year is the absence of the two constitutional complaints filed against the second purported German ratification of the UPC.

This means no UPC in 2021. Those looking for an imminent UPC will be disappointed. Last time it took the German Federal Constitutional Court three years to hear the first challenge by Dr Stjerna. A similar delay and the UK's non-involvement (see Lens post here) could mean the UPC is less attractive and never see the light of day.  Let’s see what happens next year …  

Many thanks to James Wells for his research assistance in preparing this post.