Germany

Overview

UP 

Yes

UPC 

Yes

Status of ratification

No. A draft ratification act was passed in parliament and Federal Council in March 2017. However, formal ratification has been delayed until the German Federal Constitutional Court reaches a decision on a constitutional challenge made in relation to German ratification of the UPC. The complaint filed challenges not only the act of passing the law to implement the agreement, it also challenges the various aspects of the agreement as not being compatible with EU law and the German constitution.

Local or Regional CFI 

Yes. Central and local.

Location/Venue of CFI

The local divisions will be in Düsseldorf, Mannheim, Hamburg and Munich. The central division will be in Munich.
Central Division: Cincinnatistrasse 64, 81549 München
Düsseldorf Local Division: Cecilienallee 3, 40474 Düsseldorf
Munich Local Division: Schleissheimerstrasse 141, 80097 München
Mannheim Local Division: Schubertstrasse 11, 68165 Mannheim
Hamburg Local Division: Sievekingplatz 1, 20355 Hamburg

Judges 

Two national judges and one judge from the pool.

Languages 

English, French, German (Central division). Current status: All of the local divisions will accept litigation in English next to German, but at least Düsseldorf will apply the "English limited rule" (now Rule 14.2(c)), meaning that the judgment may be in German.

UP/UPC implementing legislation

A draft implementation act was published 16 February 2016. The German Government decided on the draft for the UPC which triggers the process of implementation. On 23 June 2016, the first consultation on the implementation took place and on 8 July 2016 the Federal Council of Germany announced that there were no objections against the draft implementation. On 10 February 2017, the draft implementation act passed the Federal Council, and a decision by the German parliament is expected for the sitting taking place on 9 March 2017. In the event that the draft implementation act passes the German parliament (which is expected), only formal requirements are to be dealt with before Germany actually ratifies the UPC agreement.

Other UP matters of interest 

In June 2017 the German Federal Constitutional Court (“Bundesverfassungsgericht”) made a request to the German Federal President to hold off from giving the Presidential signature required for formal ratification of the UPC Agreement until it reaches a decision in the ongoing expedited proceedings relating to an action (“Verfassungsbeschwerde”) challenging said ratification. (Proceedings pending under docket no. 2 BVR 739/17). It is not yet known when the German constitutional court will consider the complaint, however, the court has extended its deadline for third party comments on the issue to 31st December 2017.

Germany signed the UPC provisional application Protocol (PPA) in October 2015 and signed the Protocol on Privileges and Immunities (PPI) in June 2016. The act on the Protocol on Privileges and Immunities passed the Federal Council on March 10, 2017. The act will enter into force and give effect to the Protocol in Germany after its formal notarization and publication in the German Law Gazette.

The act adapting the German Patent law to the UPCA includes a noteworthy amendment: The German provision that forbids double-patenting (Art. II §8 IntPatÜbkG), i.e. having both a German patent and a European Patent for the same invention, will be amended. In the future, a German patent will be available for the same invention alongside a Unitary Patent or an European Patent, as long as the latter is not opted out as per Art. 83 (3) UPCA. However, a defendant will be able to object to a complaint for infringement involving the German patent if a complaint for infringement involving either the Unitary Patent or the European Patent that is based on the same act of infringement, is pending against defendant at the UPC (new Art. II §18 IntPatÜbkG).

Twobirds contact 
Christian HarmsenDaniela Kinkeldey. Dusseldorf, Munich.