Rumours emerge on basis for legal challenge against Unified Patent Court reforms in Germany

Last month it emerged that Germany's Constitutional Court was considering whether legislation backed by the country's parliament, which would give recognition to the jurisdiction of the UPC in Germany, is constitutional. 

Details of who has raised the complaint and what the precise grounds for it have not yet been confirmed. However, patent law specialist Marc L. Holtorf of Pinsent Masons, the law firm behind Out-Law.com, said two distinct rumours have been circulating as to the basis for the complaint.

Holtorf was commenting after The Register cited reports in Germany that have suggested concerns about the independence of the Board of Appeal at the European Patent Office (EPO) are behind the legal challenge. The concerns relate to the powers held by EPO president Benoit Battistelli and the extent to which those powers enable him to influence judicial appointments, according to the reports.

"A perceived lack of independence of judges could be an obstacle if Germany wants to transfer judicial power to such a court," Holtorf said. However, he said a second "simpler" rumour as to the legal basis for the constitutional complaint had also emerged in the country.

"The second rumour is that too few law makers were present when the German ratification bill was adopted very late at night," Holtorf said. "This rumour implies that a two-thirds majority of the members of the house, as opposed to members present, was needed to legally pass the bill."

Holtorf said that if the second rumour turns out to be true, it would be "good and bad" for the future of the UPC.

The news would be bad because it would likely mean that German ratification bill was not constitutional and was therefore invalid, he said. However, the good news would be that "the defect could be fixed easily", Holtorf said.

The UPC, when established, will serve as a new judicial framework to underpin a new unitary patent system. Businesses will be able to apply to the EPO for unitary patents which, if granted, would automatically confer on them patent protection for their inventions which will apply across every country that gives recognition to the unitary patent regime, which at the moment looks set to be almost every EU country.

The existing European patent framework enables businesses to obtain EU-wide patent protection, but only after patents have been validated in each EU country, which can involve significant translation costs for businesses.

The UPC Agreement requires the consent of at least 13 EU countries, including the three with the most valid European patents in 2012: Germany, France and the UK. France has already voted to ratify the agreement.

Last month, a piece of legislation that UK law makers must pass to enable the UK to ratify the UPC system was laid before parliament.