German constitutional complaint

UPC back on the agenda

Yesterday Peter Huber announced a judgment in the constitutional Unified Patent Court challenge for early 2020. It has since become clear that this might not be an official statement by the court. It is still uncertain whether the court will decide in time for the UK to participate in the new patent court. Regardless of what happens next, however, it seems Huber's words have renewed interest in the UPC among the European patent community.

21 November 2019 by Mathieu Klos

Constitutional Court, Karlsruhe The Constitutional Court in Karlsruhe will now decide on FRAND rules ©Wikimedia

Peter Huber is judge rapporteur in the complaint against the German UPC legislation. He is also judge rapporteur in at least four complaints against the court status of the Boards of Appeal (BoA). In the interview with Managing IP, Huber stated that it was his “intention to issue a decision on the complaint made against the legislation enabling Germany to ratify the UPC Agreement early next year”.

But, despite this announcement, whether a decision will actually be reached in the first quarter next year is unclear. The decision is not only up to Huber, but also his colleagues from the court’s 2nd Senate.

Huber also hints at this. “His timeframe will depend, however, on the time it takes for him and other judges at the Constitutional Court to deliberate on and amend the judgement,” MIP cites regarding the constitutional judge.

For two years, the court’s annual forecast has listed the UPC complaint. But still there is no ruling, despite Düsseldorf lawyer Ingve Stjerna filing it in spring 2017. It brought German ratification of the UPC agreement to a halt. At the time, the agreement had already passed through parliament and the only remaining step was for president Frank-Walter Steinmeier to sign the bill.

Spokesman confirms interview

Upon request for comment, however, a spokesperson for the Constitutional Court did not want to confirm Huber’s announcement of the date in concrete terms. The spokesman simply stated, “Professor Huber did not comment on the substance [of the complaint]. With regard to the timetable, he did indeed say that a decision will be sought in the first quarter of 2020, but that the specific timing will of course also depend on how the consultation goes.”

Peter Huber, Bundesverfassungsgericht

Peter Huber

According to the spokesperson, the interview reflects Huber’s personal assessments and opinions.

On Twitter and LinkedIn, doubts emerged over the authenticity of the interview shortly after it was published. But MIP replied directly on Twitter and left no doubt about the authenticity of the interview.

It is very unusual for German constitutional judges to comment on ongoing complaints and seldom possible to hear anything concrete, even from sources close to the court. So far, this has been the case for the UPC complaint.

Over the past two years, the patent community has often speculated about the timing and outcome of the proceedings. There were no indications from the court, with the exception of the official annual forecast. However, this is not binding for the judges.

The last hurdle

The complaint became public in early summer 2017. Since then, patent experts have looked to Germany to see whether the constitutional judges will clear the way for the UPC or side with the complainant. Europe is still waiting for Germany to ratify the UPC agreement. This is the last hurdle for the new patent court to start. A quick decision is not only critical for the UPC to enter into force, but also for the UK’s participation.

The parties involved in the case expressed surprise at Huber’s announcement when contacted by JUVE Patent. It seems the institutions and interest groups with direct involvement were not notified about the timeline.

Meanwhile, speculation among parties abounds. It is said the uncertainty surrounding the court status of the BoA has led to the delayed decision. The 2nd Senate has received at least four complaints on this topic. According to information shared with JUVE Patent, the Constitutional Court judges called on the EPO, the German government and the German Bundestag to provide opinions on the matter. The opinions are now available.

Officially, the BoA complaints are independent of the UPC complaint. But the senate will decide both issues together, according to recent speculation. “Over all these complaints lies the question of the right to be heard and the legitimacy of international courts,” says a senior government official. The constitutional judges might be interested in clarifying this question.

In recent years, the EPO member states have attempted to strengthen the BoA’s judicial character through structural reform and new rules of procedure.

Huber rejected speculation that the court is withholding its decision pending Brexit developments. Rather, Peter Huber explained to MIP that the decision was delayed because of other important issues, such as the European stability mechanism.

No oral hearing?

The prospect of an imminent judgment in the UPC complaint quickly led to speculation that the court would now decide the case without a hearing. The court has not yet commented on this.

In the last few hours there has been much conjecture about which way the judgment will go. However, Peter Huber did not comment on the details of the UPC complaint in the interview. Supporters of the UPC have expressed their hope to JUVE Patent that the Constitutional Court will now reject the appeal. This would clear the way for the UPC. However, there is no evidence to support this.

From London to Karlsruhe

The UK has already ratified the UPC Agreement and is now waiting for a decision from Karlsruhe.

Thanks to the delay to Brexit, the UK still has a chance of participating in the UPC. To this end, the Constitutional Court would either have to clear the way for the UPC before the UK leaves the European Union, or the withdrawal agreement would have to regulate the UK’s future participation in the UPC.

However, if the constitutional judges were to prevent German ratification, the chances of a UPC would dwindle. Recently, patent experts across Europe had begun to lose faith in the new patent court because of the delay. The announcement by Peter Huber has put the UPC back on the patent community’s agenda.