Germany

UP

Yes

UPC

Yes

Status of ratification

On 23 June 2021 the German Constitutional Court (Bundesverfassungsgericht) rejected the application for a preliminary injunction against ratification of the UPC Agreement. The grounds for the rejection made it clear that in the view of the Court the case on the merits has no merit. Germany then completed its ratification process. The ratification act was published on 12 August 2021.

Germany will not yet deposit its ratification of the UPC Agreement, because the Agreement itself enters into force on the first day of the fourth month after that deposit, meaning that cases can be filed in Court as of that day. Therefore. Germany will do this just three months before the Court is really ready for business (as a “gate keeper”) to trigger the so-called “sunrise period” prior to the actual start of the Court. With the German deposition of its ratification instrument and the start of the “sunrise period”, the opt-out register will also go live, meaning that patentees will have three months to opt out patents from the UPC jurisdiction before the Court actually opens for business.

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

The key legislation underpinning the Unified Patent Court (“UPC“) and the unitary patent system has been ratified in Germany. The Federal President signed the legislation on 7 August 2021, and it was published in the Federal Law Gazette on 12 August 2021. Germany also ratified the Protocol on the Provisional Application of UPC Agreement (PAP-Protocol) and deposited the instrument of ratification for the PAP-Protocol on 27 September 2021.

Other UP matters of interest 

The act adapting the German Patent law to the UPCA includes a noteworthy amendment: The German provision that forbids double protection (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).