The German Bundesrat approved the Unified Patent Court Agreement and its Protocol on Provisional Application (PPA) earlier today, three weeks after its approval in the Bundestag. To complete the German ratification procedure, the bills will have to be signed by the government and Bundespräsident and published in the Federal Law Gazette.
The completion of the German ratification procedure would mean a very important hurdle for entry into force of the Unitary Patent system has been taken. However, is it possible and it seems likely that in the upcoming weeks a complaint will be filed with the German Federal Constitutional Court (FCC) against the UPCA. The Foundation for a Free Information Infrastructure (FFII) has been preparing such complaint. Also, patent lawyer Ingve Stjerna could be planning a new action after a complaint he filed in March 2017 was upheld partly by the FCC earlier this year.
In 2017, the FCC requested the German Bundespräsident not to sign the UPCA ratification bills which had just passed through parliament at the time, as long as it had not ruled on Stjerna’s complaint. It is not clear whether a similar request from the FCC will follow automatically when new complaints are filed.
If no complaints are filed, two more countries will have to ratify (or otherwise consent to) the PPA for the provisional application phase to come into force. In that case, the provisional application phase could start in the first quarter of 2021 and the UPC could open late 2021 or at the start over 2022.